Native Advertising: Photo Ownership rights

[Chris Chandler]

I'd like to hear what the BPL photography community thinks about companies utilizing user photos as assets for their advertising. It's a practice that's growing more and more common. I suspect the one place that everyone has seen this is REI; they've been publishing user-submitted photos on their website and catalogues for a long time now. GoLite is utilizing a similar technique with their "Therefor I GoLite" campaign that is happening now.

One thing that most of these campaigns–or in my experience, all of them that I have come into contact with but I'll say "most" because I'm sure there are exceptions somewhere–is that under the submission guidelines, the photographer relinquishes all rights and ownership of the photo submitted and receives no compensation. The photographer is also forbidden from publishing the photo elsewhere.

It's these "umbrella ownership with no compensation" submission guidelines used by GoLite and REI that I want to hear the community's thoughts on. I see both sides, but will refrain from chiming in with my opinions until a bit later so as not to influence the tenor of the discussion right from the start.

Some things to consider as a starting point–

PROS:
– provides an outlet for photographers to share pictures they are proud of
– fosters a sense of community among outdoor enthusiasts
– looking at other users' photos can generate ideas for new trips, techniques, and gear
– photographers can read submission guidelines ahead of time and choose not to participate

CONS:
– not allowed to publish photo elsewhere (this would technically include Facebook, Flickr, Instagram, BPL, etc)
– no compensation
– there are other options to the "umbrella ownership with no compensation" contract that these companies use. Look at the BPL photo contest rights for an example of limiting the company's publishing rights: "By submitting a photograph and other descriptive information to this contest, you automatically agree to grant BPL the nonexclusive right to publish your photo and information at the backpackinglight.com website, and as part of the 2014 BPL Calendar; no other rights will be granted to BPL without further written permission by the photographer. Compensation for this nonexclusive right shall be the 'prizes' as outlined above." Why aren't those companies using something more similar to BPL's submission contract?

Your thoughts?

[Bob Gross]

First things first. When you snap the photo, you (the photographer) have complete rights to the photo and its use. If you are stupid enough to submit the photo to REI or GoLite, then you deserve what you get, which is about nothing. The marginal exception is BPL. I submit various photos along with what I post to BPL. However, none of these are commercially valuable. Also, the photos I submit this way are very small in resolution, so they have even less commercial value. I would sue over $1000, but I would not sue over $1.

Let's say that I caught BPL using my photographs in a commercial way. What would I do? I would simply never post anymore that way. To hell with them. Let's say that I saw BPL using my photographs in an editorial way. What should I do? It depends. Did BPL ask for permission? Did I grant permission? If BPL used them without permission, was the source (me) credited?

If REI, GoLite, or BPL decides they like any of my commercial images on the photo gallery associated with my web site, then they can contact me.

Other web sites have "hot-linked" to my images without my permission. That will get them into trouble as well. Actually, it will be frustration more than trouble. My monitoring software detects that.

There are still a few good law firms out there.

–B.G.–

[W I S N E R !]

If somebody wants to give away their work, nobody can stop them.

What I find a little disconcerting about this trend is the potentially negative impact it has on working, professional artists. I understand the desire for a hobbyist to have their images featured somewhere without any compensation; they have nothing to lose as they were never in a position or mindset to try to profit in the first place.

But I have to question whether or not this type of advertising creates a downward pull on the wages of working artists. People that put time, skill, and effort into what they do. It doesn't just exist in the advertising world; I think most artists and musicians feel this downward pull.

Nobody has to pay anyone for anything. I don't imply that by their mere existence artists have to be supported.

But on the flip side, I think this type of advertising further reinforces the "something for nothing" attitude that is increasingly gaining steam. The scale of internet and ease of duplicating digital media exacerbate this. Forget financial compensation- many artists, musicians, and writers are lucky to even get their name credited when their work is used…or more appropriately, stolen.

I don't believe that we teach respect for artistic property very well. A simple case in point: schoolteachers will advocate against copying and plagiarism, to the point of expelling students or failing them over appropriated text, yet will rarely, if ever, ask for a photo credit when a student writes a report. Even in college. It may sound minor, but it's one example of how we culturally tend to believe that images/art cannot be property and if it's on the internet, it's fair game.

[Kattt]

Interesting thread and quite timely.
I submitted a few photos to a high end trail camera manufacturer a few months ago and agreed for them to be able to use them.
They used one of my pictures in the instruction booklet of their newest, highest end camera.
I see nothing wrong with this at all. All parties involved are in agreement. While I get the point that someone else might have made money by selling them a picture, that does not take priority over my agreeing to let them use it.
Some people have a problem with volunteerism as well; means someone isn't getting paid.
I am far from rich but getting my picture recognized like that is plenty compensation to me.

Edited to add that I did not have to agree not to use my picture in other ways. The picture still belongs to me, but they are allowed to use it in the manner they did.

[Bob Gross]

Kat, were you credited for the photo? In other words, right below the photo was there a little line that said "Photo by Katharina P." ?

If a company like that does use your photo with permission, they can often be induced to pay you a token sum, like $1. The cash doesn't mean much, but the fact that they are actually paying to use the photo gets them into a nice way of thinking. If they won't pay money, then get the agreement in writing to be revokable. That means if they use the photo for a period and then you detect that they are using it in some way that you don't like, you can unilaterally revoke your permission.

Besides, that $1 would go partly for the purchase of more catnip.

–B.G.–

[Roger Caffin]

Hi Bob

Educate me please.

> Other web sites have "hot-linked" to my images without my permission.
Does this mean just publishing the URL to your photo might be illegal? What law specifically prohibits this? Yes, I do have concerns both for BPL and other sites.

Cheers

[Chris Chandler]

Kat–

I'm confused by your description of the edit you made to your post: "Edited to add that I did not have to agree not to use my picture in other ways. The picture still belongs to me, but they are allowed to use it in the manner they did."

Does this mean they have permission to continue using your photo without your consent, or (like the BPL agreement), they have to receive permission from you to use it additionally?

[Kattt]

Chris,
I meant that I gave them the non exclusive right to use my picture.

I have had problems with individuals using my pictures and claiming them as theirs, but without making a profit, just for bragging rights…..but that is off topic.

I knew when I submitted my picture that I gave them the right to use it. I did not submit the ones that are dearest to me. To be credited for that particular picture is good enough for me and that really is enough, that I am good with it.

[Bob Gross]

"What law specifically prohibits this?"

Roger, I do not believe that it is illegal. I do believe that it is unethical to do this without contacting the photographer or web site owner.

If and when I detect that somebody is hot-linking to one of my photos without my permission, then I go in at midnight and change my image. Instead of the wildlife image, I will edit it to become a JPEG image that insults the hot-linker. When they detect that, they will take the link down.

Lately a similar problem has been confronting me, and it all originates in the former Soviet states/Eastern Europe.

–B.G.–

[Chris Chandler]

Kat:

Does "non-exclusive" mean that you gave them the right to use your photo, but that means you can still publish it elsewhere?

Re: "I have had problems with individuals using my pictures and claiming them as theirs, but without making a profit, just for bragging rights…..but that is off topic."

Still on topic. I'm interested in how everyone feels about all angles of the process, not just the monetary compensation

Bob:

This is awesome: "If and when I detect that somebody is hot-linking to one of my photos without my permission, then I go in at midnight and change my image. Instead of the wildlife image, I will edit it to become a JPEG image that insults the hot-linker. When they detect that, they will take the link down."

I wish I could have a full time job swapping linked-to photos for maximum insult. Oh the sweet justice

[Kattt]

"Does "non-exclusive" mean that you gave them the right to use your photo, but that means you can still publish it elsewhere?"

That is correct. I still own the photo but gave them permission to use it for advertising or in an instruction manual that comes with the camera.

[Bob Gross]

"I wish I could have a full time job swapping linked-to photos for maximum insult."

Chris, it's a dirty job, but somebody has to do it.

–B.G.–

[Kattt]

""I wish I could have a full time job swapping linked-to photos for maximum insult."

Chris, it's a dirty job, but somebody has to do it.

–B.G.–"

^^^^pretty funny.

[Jeremy and Angela]

Does this mean just publishing the URL to your photo might be illegal? What law specifically prohibits this? Yes, I do have concerns both for BPL and other sites.

Hope you don't mind if I jump in here! Hotlinking images is generally considered rude as it offsets the load to someone else's server. If used to create the impression the images were created or owned by the site doing the hot-linking, that would be an additional level of rudeness. But, that is outside of copyright law.

Now, an instinctive impression might be that a web page displaying a hotlinked image creates a new work that would require licensing of the image, similar to how incorporating part of a song into a remix requires licensing. However, from a technical standpoint the webserver is not copying the image, it is merely providing instructions (in the form of HTML) to the viewer's web browser. Thus, as the 9th Circuit held in the Perfect 10 case, this does not directly infringe the copyright holder's exclusive right to display the work.

Publishing the URL itself in the form of a link on which a user can click is perfectly fine; it is fundamental to the very nature of the Web. Similar to a street address, the URL itself is generally not copyrightable.

[Jeremy and Angela]

The only time I would transfer copyright so casually would be if a tourist handed me their camera and asked me to take a snapshot of them. A business asking users to submit both their photos and all rights to them for free is a practice that should be stomped on and obliterated.

If REI were only asking for non-exclusive rights to re-use the image on their website and advertising material, but not asking for copyright to change hands, I would probably be happy to contribute a few images on occasion. As I gain some value from some of the user reviews on different sites (not so much REI, but perhaps Backcountry), I would view it as returning the favor.

Now if a client hired me to take photographs for a particular event or purpose, I would expect they want broad rights to the images. Some photographers feel this is unacceptable, as they want clients forced to return to them whenever they want additional prints made, and so forth. Personally I would consider it appropriate to charge a little more, but provide them a wide range of usage rights. What if the client can't track down the photographer in the future? (In some jurisdictions, these photos might be considered "works for hire", and copyright would automatically be owned by the client.)

Of course, many photographers are extremely zealous about "intellectual property", often forgetting the purpose of copyright is promote the progress of the arts and sciences by providing creators with temporary rights of exclusivity. Works are not created in a vacuum, but rather built upon their predecessors. Allowing perpetual control may make some people rich, but stifles further creativity.

[W I S N E R !]

I think they should at the very least be giving you gear Kat. Your work is good and they're turning your time, effort, and even risk in the field into a driver for their profit. I know you'd be doing it anyways because you love it, so it's easy to share. I'm not at all against sharing. But when one party is literally making money off of the free work/labor of another, I think it's becoming something different than "sharing" or "volunteering". No disrespect intended…I say this not as a critic of your choices, but as an admirer of your work and effort. Who else is shooting closeups of big wild cats on a near daily basis?

I got screwed when I was younger on a large illustration job. I was an art student at the time and was simply excited that someone wanted to use my original art for a commercial fantasy card game being launched. I literally gave the work to them for "credit" rights.
Untold hours of painting went into this. Why didn't I seek money? Because I was an aspiring artist and figured this was a launch pad for exposure and it was better than nothing. I was scared to ask for money, mostly just flattered to be discovered and wanted, and I was afraid I'd be passed over if wanted to be paid. It turns out the "credit" never quite materialized (there was nothing in the contract that stipulated how, exactly, I was going to be credited) and I later realized that this game was built on the backs of artists essentially donating work. Literally, it was the art that sold half of the game. They were making good money off of the hopes of aspiring artists that didn't know any better.

I'm not greedy. But one thing that being involved in the arts for most of my life has taught me is that there are a lot of people in this world that will always be happy to say they love your work and even happier to take your work for free or far less than what it's really worth. And as an artist, especially a young/aspiring one, you're often just excited to be wanted so you give in…

[Chris Chandler]

Jeremy–

What are the terms on the BC user photos? I've never looked into posting anything on there, but do enjoy viewing them. They're also an interesting case because, if I recall, BC does something of a rewards system for contributing reviews and photos to the community. Accumulate points, get rebates, repeat

maybe that's on Moosejaw. Heck I don't remember

[Kattt]

I appreciate what you are saying Craig, in a number of ways really.
I would like to be able to make a little money to help pay for what I have spent. Maybe postcards sold in the small town that is closest to me, maybe offering a service for people that are curious about what roams around in back of their house…

[Jeremy and Angela]

The ToS section on BC user reviews includes: "Posting content or submitting material shall grant Backcountry the right to use and display such content pursuant to a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable license. You grant Backcountry and sublicensees the right to use the name that you submit in connection with such content, if they choose."

This is similar to the BPL ToS, excepting the "sublicensable" bit is lacking. BPL also explicitly mentions the right to modify, adapt, and create derivative works.

[David Thomas]

>"It's a practice that's growing more and more "

While all text, images, music, and videos are getting passed around more and more quickly all the time, this isn't a new practice. Patagonia used consumer-submitted photographs in their catalogs in the early 1980's. I don't know if the co-op started in Seattle in 1938 to sell outdoor gear (REI) did it previously, but the co-op started in Berkeley in 1939 that sold out outdoor gear through multiple outlets and through a catalog did the same in the 1970's for their catalog. I look at those old catalogs and recognize most of the "models".

My thoughts: I'm fine with it. Many, many services are in flux do to our greatly increased connectivity. I can sleep on someone's sofa instead at the Hilton, I can download songs for free, I can watch amateur how-to videos, beginning backpackers can ask any of us a question and get some quite good and other occasionally bogus information. I can study math and physics for free on Kahn Academy. Previously, you HAD to go the hotel, record store, local mechanic, backpacking store or university.

It makes it harder to be a beginning, professional photographer (in the sense that one could pay the rent). I don't know any progressional photographers (one wedding videographer) but I know several retired dot-commers who act like progressional photographers. Except they have nicer gear, travel to more interesting places, and don't fret if their calendars don't sell.

It's rather hard to be a professional blacksmith anymore but if you want to shoe your own horse and are any good, your neighbor will probably pay for the raw iron and nails to shoe his horse. Travel agents have almost entirely gone away, but I like being a white knight sometimes and will help out travelers with deals and tricks I've learned – for free. There used to be telephone operators who connected your phone calls, but anyone can still be a ham radio operator. Low-end prostitution must be tougher now with everyone hooking up for free on Craigslist. Technology happens and what was once a paying job becomes, at most, an interesting hobby for a few aficionados.

I think the terms and conditions should be clear. I like seeing photographers band together and share information so they know how to protect their rights and which are the more upstanding firms to deal with. I've spent thousands on progressional photographers a few times. There will remain a market for custom work by talented people. But the value of a photo library of stock images is approaching that of your pristine collection of BeeGees 8-track tapes.

[Bob Gross]

"maybe offering a service for people that are curious about what roams around in back of their house…"

Kat's Cats.

Postcards? I doubt it. You can't really make any money in postcards unless you are printing 1K to 5K of each image.

Maybe you could get sponsorship by the Santa Cruz Puma Project.

–B.G.–

[Bob Gross]

David, this about Craigslist… you know it how, exactly?

–B.G.–

[David Thomas]

>"I got screwed when I was younger."

Didn't we all?

In my case, I wrote some of the first nationally-marketed microcomputer (pre-Apple) home application software while in high school in the 1970's, and got paid less than minimum wage (by being called a "contractor" at $2.50/hour). I would have been programming anyway. I learned more about programming, got to work on lots of different machines, but also learned I should have been a better advocate for myself.

I'll also note that in an era that spawned Apple and Microsoft, that firm didn't succeed.

[David Thomas]

>"A business asking users to submit both their photos and all rights to them for free is a practice that should be stomped on and obliterated.

If REI were only asking for non-exclusive rights to re-use the image on their website and advertising material, but not asking for copyright to change hands, I would probably be happy to contribute a few images on occasion."

I can think of a legitimate reason for a business to want exclusive rights to customer-submitted photograph they use in their advertising. If a competitor or distractor used that photograph in an unflattering way or modified it to something rude, tasteless or offensive (REI gear on an American family that just shot an African Lion, say), they would like to be able to shut that down.

Often the "exclusive use" is a bit of a red herring, because the photographer typically has many shots of that bear, mountain or extreme athlete and you'd be surrendering use of only one image, not the whole set.

How about terms that include the photographer's copyright notice and contact information being imbedded in the image? So it can be traced and so the photographer might get referrals through the distribution of the photograph?

[Bob Gross]

"How about terms that include the photographer's copyright notice and contact information being imbedded in the image?"

I do that, but it is a trivial task to remove it.

–B.G.–

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