Left Coast photographer Howard Rosenberg gets the credit for finding this beauty. Our readers know that we are quite fond of the phrase, “You can’t make this stuff up” and we use it frequently in our workshops. Here is proof that you can, in fact, make it up.
Howard noted some discussions in a photo chat room regarding the Terms of Service (TOS) “offered” by a publication known as “Uncovered”. Here is the link to their TOS: http://uncoveredmagazine.com/tos/
Howard (correctly) viewed the solicitation for photographs being made by Uncovered as a giveaway, a rights grab or as close to a gift as you can get. But hey, it is the holiday season after all.
Ed’s eyes caught these sentences from the section entitled “Protections from Unauthorized Use”:
“All photographs, articles and content may not be downloaded, stored, printed, manipulated, distributed, or used in any form without prior written permission from the copyright holder except as otherwise allowable by international and United States Copyright law (i.e. Fair Use Act). Works published by UnCovered Magazine are protected under domestic and international copyright laws, such as the Berne Convention, WIPO Copyright Treaty, and Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), and are not considered to be public domain. Pleases see http://www.copyright.gov/ and http://www.rightsdirect.com/content/rd/en/toolbar/copyright_education/International_Copyright_Basics.html for more information.”
Putting aside the tortured grammar, we note the reference to “(i.e. Fair Use Act)”. Well, simply put, there just ain’t no such act. Fair Use is a defense to a claim in copyright infringement and as we have explained many times, involves the application of several criteria by a court. The author of the terms simply made up a law that is not on the books. Nice work if you can get it.
The verbiage from the UnCovered TOS appears to have been authored by a non-lawyer who likely cut and pasted some legal sounding clauses seen elsewhere. The language is essentially incoherent, but to many photographers it sounds “legal”. It references several laws – both real and imagined – thus giving it an air of authenticity. It even provides the URL for the US Copyright office to lend an additional touch of legitimacy.
You don’t have to be an English major to see that the language is at best, unclear. “Gibberish” is a more apt adjective. The use of the finest spices and herbs on a piece of spoiled fish will not prevent the diner from getting sick.
These ABCs should serve to remind everyone to:
A: Read carefully.
B: Don’t sign anything that you don’t understand or that doesn’t make sense to you.
C: Just because something looks legal doesn’t mean it either is, or more importantly, is there to protect you. Better to assume that if you did not write the clause, then its not there for your interests.
Have a Happy New Year Y’All
#1 by Michael Corbin on January 2, 2014 - 7:48 pm
Beyond that, I note that those same terms of service also state that by merely submitting your work for their consideration, you effectively give them perpetual, unlimited, uncompensated usage rights. Egads.
#2 by Edward C. Greenberg on January 3, 2014 - 5:10 pm
Ahh but you actually read the TOS while most photographers don’t even bother to try. The reluctance of creators to read, insist upon understandable terms or ask for advice from trained experts is well known in the fields of publishing, advertising, media etc. The knowledge that photographers are easily duped understandably perpetuates these practices.
The IP departments frequently refer to photographers and illustrators as “sheep”. That characterization is based on actual experiences. Photographers and creators who act like business people and thus don’t “go along to get along” won’t be slaughtered.
#3 by Ken Brown on February 5, 2014 - 7:12 pm
I often see forum postings where photographers rightly state that a copyright can only be transferred by written contract, they fail to realize that granting an unlimited license doesn’t require the same paperwork.
Read the TOS or the contract. I recently received a freelance contract that was so disgusting I almost had to cry. They wanted exclusive unlimited rights for several years and a requirement that any licenses I grant after the exclusive period ended have a credit of “as seen on —-.com”. All for $10/photo.
#4 by Ed Greenberg on February 18, 2014 - 9:17 pm
Exactamente Ken! A point Jack and I raise at every one of our workshops and seminars because unlike you, most photographers have only their brains wide open thinking about how they are going to spend that upcoming check. Their eyes on the other hand – whether open or closed – refuse to see anything which might prevent that check from coming down the pike.
Clients well know that most photographers are not as vigilant as you are and act accordingly. The result? Money saved and kept in the pockets of clients. They issue these TOS because they usually succeed in getting artists to agree to them.
Kudos to you! Have an adult beverage on us – you deserve it.
#5 by Ken Brown on April 8, 2014 - 5:47 pm
Ed and Jack, you need a section somewhere for people to post “You can’t make this up” stories. This is as close as I can find and you can move it if you like.
Here’s a good one from a real estate photography forum I follow:
“A person I was considering for building some cabinets for me showed me his portfolio on an ipad ….. impressive a bunch of crap shots and then several really nice images ….. Oh hell, those are mine. The builder gave the images to him. ”
Most professional photographers that I know issue non-transferrable licenses for real estate and architectural work. They also include an a partial list of third parties that the images may not be given to just to drive the point home. I wonder if the cabinet maker was aware that the photos he was showing were not properly acquired and he was showing them to the one person who would definitely know and care.
#6 by Tom Rose on April 5, 2018 - 6:37 am
It is not only photography.
tutorialsteacher.com invites people to write for them, and then has this to say about Copyright:
“Once your content is published on our site, we hold the complete copyright of the content and the same content cannot be re-used by the author for any further online or offline publishing under any condition.”
I know that Amazon claims copyright in any user reviews, ut they are quite short, easily written, and don’t have a lot of earning potential.
But I would never allow any one to take the copyright of any of my more extensive writing unless they were paying much more than tutorialsteacher offers. A good short article is often only possible because of years or decades of learning and experience.
Yet it seems that hundreds of excellent writers who are experts on their subjects are quite happy to almost give their work away.
I have no problem with anyone sharing their knowledge for free. That is their choice. I just do not understand why anyone would give away copyright so cheaply.