PetaPixel

Twitter Photo Rights Controversy is Much Ado About Nothing

Last week Scott Bourne published an article on Photofocus titled, “Photos On Twitter – What You Should Know“. In it, he claimed that Twitter’s terms of service (TOS) forced photographers to give Twitter a license to do whatever they wanted with photos shared through the service. The argument centered around a couple paragraphs found in the document:

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

This was used to argue that Twitter owns a license to photos shared through the service. The second snippet is this one:

You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

Bourne writes,

As a professional photographer, I can’t sell “exclusive” rights to any image I decide to publish on Twitter. The reason is that once it is published on Twitter, there is no exclusivity left.

Today ReadWriteWeb covered the story, bringing into the tech/business blogosphere. While the snippets referenced by Bourne seem like a big deal upon first glance, the argument is flawed because it’s based around an erroneous understanding of the word “Content”. This comment by Michael Owens on the ReadWriteWeb article explains it best:

This article, and all of the other articles that this stemmed from, contains a fundamental misunderstanding about the definition of “Content” in the context of Twitter. Twitter’s “Content” is the 140 characters and any metadata stored and served by Twitter. Anything that requires a URL to access (i.e. a link shared on Twitter) is not considered “Content” in the context of Twitter’s ToS (from http://twitter.com/tos “any information, text, graphics, or other materials uploaded, downloaded or appearing on the Services (collectively referred to as ‘Content’)”).

This may become an issue if Twitter were to—say for example—buy TwitPic or create their own Photo Sharing tool. And yes, there is potential legal concern with the way that their Media Pane system works in the #newtwitter UI design, as it does state “appearing on” but for their license to apply to the content of their Media Pane, it would require that the license from the service allowing their content to be displayed to be sub-licensed. Prior to the Media Pane in #newtwitter, I would have said this is a complete non-issue. Now, it’s just something to “watch” and, if you’re really worried about it, don’t use services that work in the Media Pane.

This is the Media Pane Owens is referring to:

Thus, prior to the new Twitter design, “Content” pretty much referred exclusively to Tweet text (as well as profile and background images). Even with the new Media Pane, it doesn’t appear that Twitter is claiming a license for the photographs displayed. Twitter even notes in a “tip” immediately following the controversial TOS section — this isn’t mentioned in any of the articles — that it’s simply meant to allow them to display your Tweets:

Since Twitter doesn’t currently have an photo uploading feature that stores images on their servers besides avatars and background images, there isn’t a way to “publish” images to Twitter.

If you’re still worried about images that appear in the Media Pane, just avoid linking to services (i.e. Flickr and TwitPic) that show a low res version in the pane. Photos that are linked to from Twitter but stored on third party services or your own servers don’t count as “Content” and the controversial sections of the TOS don’t apply.

The second controversial section regarding making your content available to third parties has to do with providing an API through which your data can be accessed. For example, if you use a third-party client like TweetDeck you’re using this API.

In summary, as long as your photographs aren’t uploaded directly to Twitter and they don’t appear in the new Media Pane that expands, your linked-to photographs are completely safe and not licensed to Twitter at all.


Image credit: scream and shout by mdanys


 
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  • Anonymous

    Scott Bourne spends way too much time worrying about copyright and trying to “protect” his “intellectual property”, which is a very disadvantageous business model. Be careful though, if you criticize him on Twitter, he’ll just block you.

  • http://twitter.com/Reservoir_Dan Daniel K. Berman

    Scott Bourne is big noise who can’t handle anyone questioning him in any capacity – good to see some common sense instead of ego in this piece

  • http://twitter.com/yoshuawuyts yoshua wuyts

    Wow, so in the end it all came down to:”Well but íf twitter were to make a photosharing tool it’d be bad for all of us.”

    BUT THEY DIDN’T.

  • Frodoshop

    Scott Bourne is a legend in his own mind.

  • Mead Norton

    This all came about due to the fact that a photojournalist posted images from Hati just after the earthquake hit to twitter and then Agency France then published those images on their network and have claimed that they don’t need to pay the photographer for the images since he posted them on Twitter and according to Twitter’s T&C he has lost the ability to claim copyright to the images. The case is currently in the courts at the moment, but it is not looking promising for the photographer.

  • bill

    Scott Bourne calls himself a nuduir photographer….please

  • http://www.j--a--c.com/ jamescampbell

    Glad to see this issue was finally covered correctly, thanks for flushing out the truth from a poorly written article. He needs to stick to his contests.

  • http://twitter.com/howieritter Howie Ritter

    Wow a video game designer pretending to be a lawyer “debunks” Mr. Bourne’s thoughtful piece. I know lots of people hate him because he’s successful but please. To simply hate on the man with no credible resource to back you up makes it look like you’re just trying to steal traffic via a link bait. The case regarding Agency France is a perfect example that proves out what Mr. Bourne is saying.

  • http://twitter.com/Reservoir_Dan Daniel K. Berman

    Bourne’s piece was misleading and poorly written – far from thoughtful. Bourne is no lawyer, he’s a contest promotor who builds his follow list to fortify his lecture circuit racket to get hits to his website to entice more advertising. He’s not interested in dialogue and could care less about individual photographers. To question the man is not to “hate” as you put it. He has no credibility as a copyright expert and shouldn’t speak from his perch as though he knows more than anyone else. He should stick to his real business: contests.

  • http://twitter.com/Reservoir_Dan Daniel K. Berman

    The photographer in question did not “post” on Twitter. There is no way to post a photo on Twitter. Please get your facts straight.

  • http://www.facebook.com/profile.php?id=503459164 Tyler Webb

    But if the case is not looking good for the photographer (don’t know, just going by what OP said) isn’t that then case for concern regardless of whether he posted the photo to Twitter or TweetDeck?

  • http://twitter.com/Reservoir_Dan Daniel K. Berman

    The photographer in question posted to TwitPic – a website with no affiliation with Twitter in any capacity. Tweetdeck is a Twitter client, a way to browse and post tweets, it isn’t a site where one posts anything. Mr. Norton above doesn’t seem to understand that Twitter and Twitpic are two different entities. The TOS of Twitpic is indeed onerous, much like Facebook, and users should indeed beware. But that issue is unrelated to Bourne’s carte blanche assertion that “sharing” on Twitter compromises exclusivity and ownership of a photo. Whether the case with Agency France is “looking good or bad” for the photographer is really an unknown at this time. Until a verdict is reached it’s just idle chatter. This isn’t to suggest that people post their content willy nilly, but scare tactics and mis-information aren’t helpful either. Goodness look at this conversation – some people here don’t know the difference between Twitter, Tweetdeck and Twitpic – of course they’ll trust the opinion of an industry “leader” like Scott Bourne, whether he’s right or wrong.

  • http://twitter.com/patrickahles Patrick Ahles

    Immediately after I read the tweet with the link to his blog post, I responded to Scott Bourne that there was a flaw in his article: you can’t post pictures to Twitter. His response says it all: “I take my legal advice from lawyers”.I then commented on another blog that linked to the post (since he had so graciously turned off commenting on his own blog, blaming spam). Somebody must have pointed him to that blog because he responded there: “The article was accurate and vetted by an attorney”. Okay, maybe I was a bit rough by calling him anal about copyright (although reading the other comments I get that I’m not the only one who has an opinion about that). Again, hiding behind his lawyer.Unfortunately all the sheep follow Scott blindly. Nobody dares to think for himself. Scott the Great (or was it his lawyer) has spoken, so it must be true.Too bad: I like his photofocus podcast, as he gives out great tips and tricks for aspiring photographers. But this might be the turning point for me…

  • http://twitter.com/patrickahles Patrick Ahles

    I criticized him, and he didn’t block me… yet!

  • http://twitter.com/Reservoir_Dan Daniel K. Berman

    Patrick – when I tweeted Scott that his piece was misleading and the phrase “sharing on twitter” confusing and asked him to clarify he tweeted that I “must have an agenda.” I tweeted back “oh come on Scott lots of folks are confused by the piece,” and he said “oh so you speak for others now? Give me some names then.” When 6-7 people spoke up and agreed with me…he blocked me. The man has issues. Of course there isn’t a comment section on his blog! He DOESN’T want to hear from you! Or me for that matter ;)

  • Anonymous

    “He’s not interested in dialogue and could care less about individual photographers.”

    My experience is completely contradictory to that.

    He allowed me to contribute guest articles on his previous TWiP blog no less than twice – me, a complete unknown amateur shooter, and someone with whom he’d never even met. I really respect that he took the chance on trusting me, and being willing to encourage give opportunities to amateurs.

    As far as I’m aware, his aggressive stance on the assertion of copyright is founded on numerous cases of infringement upon his works, and the endless instances of surreptitious (deliberate or accidental) exploitation of photographer’s rights and commercial interests by corporations etc.
    In that sense, he’s just being a pro-active businessman.

  • Anonymous

    @Daniel K. Berman
    “He’s not interested in dialogue and could care less about individual photographers.”My experience is completely contradictory to that.He allowed me to contribute guest articles on his previous TWiP blog no less than twice – me, a complete unknown amateur shooter, and someone with whom he’d never even met. I really respect that he took the chance on trusting me, and being willing to encourage give opportunities to amateurs.As far as I’m aware, his aggressive stance on the assertion of copyright is founded on numerous cases of infringement upon his works, and the endless instances of surreptitious (deliberate or accidental) exploitation of photographer’s rights and commercial interests by corporations etc.In that sense, he’s just being a pro-active businessman.I’ve also known him to freely and comfortably admit mistakes – but the throngs of haters tend to completely disregard those instances.

  • http://twitter.com/Reservoir_Dan Daniel K. Berman

    I can only speak from my experience with him – as do you, so it’s good to know the way he treated me isn’t always his protocol. That said, the word “hate” is thrown around way to much. I feel it’s important that when someone positions themselves as a BIG voice in an industry that they be ready and prepared for fair critique. That isn’t “hate.” It’s common sense.

  • Photosophy

    True, fair critique is always good, and he doesn’t seem to mind someone making him aware of more accurate information on a subject.

    But as a outspoken voice, it also makes you a lightning rod for people acting out their own issues and agendas. When a less popular person voices their honest experience or opinion, they’ll get a small sampling from concurrence to mild hostility.

    Scott Bourne gets death threats (true story)

    Regular instances such as that tend to battle harden a person. But I also sense that he thoroughly enjoys the fray, and winding up the countless ‘haters’ and weenies who talk out their butt.

    Getting into regular scraps wouldn’t suit me very well…but that might explain why Scott has more money lost in his couch cushions than I have in my bank account. LOL! :D

  • http://twitter.com/Reservoir_Dan Daniel K. Berman

    He’s a businessman plain and simple. You never see real photographers like Chase Jarvis acting like Scott. If Bourne can’t tell the difference between fair critique and “weenies talking out their butt,” then he should either cut off all interaction or simply treat everyone with the same respect. The way he attacked me on Twitter for posing a serious and important question was frankly embarrassing for someone of his “stature.” Popularity, as you put it, means nothing. We either respect other people and learn to act with diplomacy or we don’t. In my real line of work I have people ask me stupid questions all day long. My choice is to educate and nudge people in the right direction or “suffer that fool gladly” – for me the right choice, as a human, is clear.

  • http://twitter.com/marshallk Marshall Kirkpatrick

    Michael, thanks for this post. I’ve updated ReadWriteWeb’s coverage with an Editor’s Note (that’s me) pointing here and suggesting our readers read your post as well.

  • http://www.petapixel.com Michael Zhang

    Cool, thanks Marshall =)

  • http://twitter.com/RobShaver Robert Shaver

    Here’s a bit of the terms of service from TwitPic, “For clarity, you retain all of your ownership rights in your Content. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service.”

    Sounds the about the same as the terms on Twitter … and most every other Internet site that lets users post stuff. So what Scott Bourne said is true that if he publishes his photos on TwitPic he has granted them a license to use it. What surprises me is that, as a professional photographer, he didn’t already know that.

  • http://twitter.com/InvisibleGreen Marcus Taylor

    Robert, you should read the comments. TwitPic and Twitter are not the same thing, so Bourne’s article is misleading at best. If his article had been called “Photos on TwitPic, things you should know”, then it might have merit. As there is no way to publish a photo to Twitter (currently) his assertions are wrong.

  • http://www.petapixel.com Michael Zhang

    Looks like you’re right. It appears our account (@petapixel) has been blocked by him.

  • Photosophy

    A few months ago, Twitter temporarily launched a service called “Tweet Media” for displaying embedded photo and video media in Twitter streams.
    http://mashable.com/2010/07/26/tweet-media

    The TOS is question was probably pertinent to that content.

    Twiter says the feature was discontinued, (however the Tweet Media checkbox is still in my Twitter settings) and that “inline media is still shown on our own iPhone and Android apps”.

    I don’t have an iPhone so I can’t confirm, but regardless the post is a good heads up about putting photos in Twitpic and other sharing services, and Twitter’s possible future plans for inline media.

  • Photosophy

    Sorry…Opera keeps doing weird things with Disqus here…

  • http://twitter.com/Reservoir_Dan Daniel K. Berman

    Amazing, isn’t it Michael? His piece has been questioned, debunked, ridiculed, and even honestly debated all over the internet, and his response: a block. Wow.

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  • http://twitter.com/fenriq Erik Orgell

    Now I know why I USED to follow Scott Bourne and STILL follow Petapixel. Thanks so much for cutting through the FUD.

  • http://twitter.com/TeeWebb Tyler Webb

    Definitely a solid response, was mostly looking for some clarification on your stance/ideas, which I got. I’m not really on either side of the issue, just enjoy real conversation over the usual over intensified/simplified internet debate. In that regard, thanks.

  • http://twitter.com/TeeWebb Tyler Webb

    Definitely a solid response, was mostly looking for some clarification on your stance/ideas, which I got. I’m not really on either side of the issue, just enjoy real conversation over the usual over intensified/simplified internet debate. In that regard, thanks.

  • Anonymous

    I’d be interested in learning more about these “numerous cases of infringement,” because a national search of federal court dockets for his name (and the two companies he purports to have done business as: Scott Bourne Companies, Inc. and Bourne Media Group, LLC) revealed nothing.

  • Anonymous

    Also interesting — despite his fairly regular admonishment that photographers should register the copyrights in their images, a search of copyright registration records reveals that he hasn’t registered any of his own (again, searching for his name and the two companies he operates (or has operated) under).

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  • Jon Spanos

    Agreed.

  • Jon Spanos

    Indeed!

  • Jon Spanos

    Scott Bourne is a tool!

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