The other day we posted the following:
“Going the Times one worse, running every day on page 2 of the The New York Daily News is a plea which reads:

”GOT A PHOTO? Did you capture that perfect New York moment? We want it! Send your picture to: [email protected]”

At the request of some clients who were unable to obtain or find a copy of the submission guidelines used by “New York’s Picture Newspaper”, I endeavored to locate it.  Several e mails and four telephone conversations with News employees later, I can report that as of this moment I have failed.

I identified myself and clearly explained that I was phoning/writing at the request of photographer clients who needed to see the guidelines before even considering sending the News any photos.  Each person at the News who spoke to me was both pleasant and clueless.  It was suggested to me by a lady in “picture sales” that a contributor, “just needs to call our legal department and speak to one or our attorneys”.  Incredulous I asked, “You expect each contributor to talk to a lawyer? Where in your solicitation does it say that”?  I advised the News that I would not reach out to it again.  That if indeed such guidelines exist, they can send them to me and I will post them for all to see.

Why anybody would voluntarily send a picture to a publication, especially a “top ten” newspaper, without any terms, conditions or compensation attached it beyond me.  The mere fact that the NY Daily News (or any other publication) “wants it” doesn’t justify your giving them a present.  You just can’t make this stuff up.”

Just yesterday I finally received a phone call from Anne Carroll a fine attorney who represents the Daily News and who has been a legal adversary in the past.  I pointed out to her what appeared to be the absence of stated submission terms on page 2 of the newspaper and the inability of any News personnel to direct me to a copy of same.  She directed me to the very bottom of the page (some six inches away from the plea for imagery) where in very, very small print the following appears:

“All materials submitted to The Daily News are subject to the same terms that apply to the submission of content to NYDAILYNEWS.com.  Those terms can be found at NYDAILYNEWS.com/terms under the heading “User Content” (sic)

If you chose to send intellectual property in response to a solicitation you would not be a “user” but rather a “contributor”, but lets not digress.  The terms for submission to the website are thus the terms for submission to the print version – just in case you missed that sublety.

So, we followed the twisting yellow brick road and found what appears to be the elusive submission terms applicable to the newspaper.  We then wrote back to Ms. Carroll for confirmation that these are the terms which would apply to a photographer who submitted images to [email protected].  Here is her response:

“If the below is an accurate copy of the “User Content” section of our “Terms of Service” on nydailynews.com <http://nydailynews.com/> , then it does constitute the terms for submissions by readers transmitted to the Daily News in any form.  The applicability of these terms to all such submissions – whether or not they are posted by the reader directly on our website – is specified in the paper’s index”.

So bunkies here they are, the terms as they appear in the website only, in full and unedited:

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USER CONTENT

The Daily News may provide users an opportunity to transmit or post text, videos, photographs, images, sound files and/or other content to the website (collectively, “User Content”) and may provide for the hosting, sharing and/or publishing of such User Content. The Daily News does not necessarily endorse, support, sanction, encourage, or agree with User Content and expressly disclaims any and all liability in connection with any User Content.

You shall not transmit or post any User Content that: (a) is unlawful, threatening, harassing, abusive, false, inaccurate, deceptive, misleading, offensive, distasteful, inappropriate, libelous, defamatory, obscene, vulgar, pornographic, profane, indecent, invasive of another’s privacy or harmful to minors in any way; (b) constitutes or encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate and local, state, national, or international law; (c) is copyrighted, protected by trade secret, patent, trademark or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to submit or post the material and to grant Daily News all of the license rights granted herein; (d) refers derisively to the goods or services of others; (e) includes any disruptive elements that may damage or interfere with the Website such as computer viruses, bots, worms, bombs, or trojan horses; (f) includes advertisements or solicitations of business; (g) impersonates another person; (h) includes any person’s full name or personal or identifying information without that person’s authorization; or (i) violates the law or otherwise violates these Terms of Service.

In connection with any User Content you submit, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize the Daily News to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Website and these Terms of Service; (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Content in the manner contemplated by the Website and these Terms of Service; and (iii) it complies with these Terms of Service.

You understand that all User Content is the sole responsibility of the person who transmits or posts that User Content. This means that you, and not the Daily News, are entirely and solely responsible for all User Content that you transmit or post and for the consequences of the Daily News publishing such User Content. The Daily News does not and cannot review the User Content transmitted or posted by users and is not responsible for such content. However, the Daily News shall have the right, but not the obligation, to refuse, delete, move, remove, or edit any User Content that violates these Terms of Service or is otherwise objectionable, as determined by the Daily News in its sole discretion and without notice. Any specific complaints regarding User Content must be directed to [email protected] <http://[email protected]/> , and any promise by the Daily News to investigate, delete, remove, or otherwise edit any User Content shall be non-binding unless expressly provided in writing by a Vice President of Daily News.

You agree to indemnify the Daily News and its parents, subsidiaries, and affiliates, and each of their respective partners, officers, directors, employees, agents and representatives, against, and to hold each of them harmless from, any and all claims and liabilities (including attorney’s fees) that may arise from your use of the Website, your transmission or posting of User Content, your unauthorized use of material obtained from the Website, your breach of these Terms of Service, your violation of any law, regulation or any right of any other person or entity, and any unauthorized use of your account or password. The Daily News reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.

By transmitting or posting User Content , you grant the Daily News the perpetual, non-terminable, worldwide, , nonexclusive, royalty-free, sublicenseable and transferable right and license to use, reproduce, edit, remove, modify, publish, transmit, display, distribute, have distributed, promote, perform, and prepare derivative works of, all or any potion of such User Content in any form, in any medium now existing or hereinafter invented for any purpose, including commercial uses, including without limitation, in connection with the Website, in connection with the print or online edition of the Daily News or NYDailyNews.com, in connection with the Daily News’s (and our successors’) business, in connection with promoting and redistributing part or all of the Website (and derivative works thereof) without additional notice, approval, consent, compensation or attribution. You waive any moral rights you may have in the User Content. You also grant each user of the Website a non-exclusive license to access your User Content through the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Content as permitted through the functionality of the Website and under these Terms of Service.
Read more: http://www.nydailynews.com/services/terms_of_service/index.html#ixzz0bsbNcwOY <http://www.nydailynews.com/services/terms_of_service/index.html#ixzz0bsbNcwOY>

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I promised Ms. Carroll that I would post the above in full and my comments (below), provide a copy to her and give her all the space she requires on this blog for an unedited response should she wish to submit one.

My “bottom line” comments regarding the terms:

1.  The News doesn’t encourage illegal behavior or use of imagery which may present civil or even criminal law implications so keep that in mind if you want to send in an image.
2.  By sending in a photo you are acknowledging and representing your ownership and copyright in the image and that you have obtained any necessary releases.
3.  You the contributor (called “user” here in a twist of both logic and grammar) are legally responsible for any legal problems resulting from the News’ use of the image on their website or newspaper.
4.  You are obligated to “indemnify” which means pay for lawyers fees, expenses and judgments  incurred by the News in the event there are legal problems caused by the use of your submitted image.
5,  You are granting the News the virtually unlimited right to (forever) use, distribute, license, sub-license, sell, prepare derivative works and republish the image which you represent and they acknowledge is your copyrighted image.  In short you are giving away for no compensation, the key rights you possess under Federal Law under Title 17 of the United States Code.  They can make money on your image as a result of the activities which you are permitting them to engage in with respect to your image.
6.  There is no mention of compensation.  There is no mention of photo credit(s).

You have in effect, given The New York Daily News a non-exclusive right to make money off your image to the best of its ability and to keep all of that money. They may do so without your participation, without an accounting and the only recognition you may get is notification that you may be on the hook for legal fees or a judgment rendered against the News arising out of its use of your picture.,

You are thus giving a gift with a huge string attached – potential liability down the line.  Seems like a great deal don’t you think?  I asked Ms. Carroll why anyone, professional or amateur, in their right mind would submit an image on the above terms.  The  question remains.   If there is a response from the News it will be printed in full and unedited on this blog as soon as we receive it.

Note a week after this initial posting:

The Daily News legal counsel was offered unlimited space to issue an unedited reply to the above article.  We supplied a copy of the article to their lawyer.  We “re”-confirmed that offer to their attorney in writing.  To date they have not responded to the above article nor have indicated that they intend to do so.  Interpretation of such non-response or non-action is up to you, our dear readers.

Edward C. Greenberg