Tuesday, August 24, 2010
5 Tips For Avoiding The Rights Grab
Get exposure for your work without losing ownership of it
Read the terms and conditions of just about any contract, website and even some venues, and it’s almost inevitable that you’ll find some form of the "rights grab." Even doing something as seemingly innocuous as posting images on social media can result in a "rights grab."
What Is The "Rights Grab"?
At a fundamental level, the “rights grab” is the use of contract language to effect a transfer of rights, usually copyrights, away from the person who created the work. In the context of a photographer, the contract language divests the photographer of the rights to the images that were created (or grants such broad license rights that it effectively obviates any rights). At times, the language that conveys rights is buried in the middle of a lengthy contract containing other terms. However, even when the terms are presented up front, the terms still may be incomprehensible to anyone not trained as a lawyer.
While the language itself may vary, the "rights grab" language often includes certain key terms to which a photographer should be sensitive. For example, a "rights grab" may include words like “transfer” or "assign" when referring to copyrights, with such language intending to convey the photographer’s copyrights. However, the "rights grab" also can manifest under the guise of being a "license," particularly when the license is "perpetual," "irrevocable," "fully paid up" and/or includes the right to "distribute" or "sublicense" and/or "prepare derivative works" of any licensed images or works. If you see these sorts of terms in a contract, or terms of service, or credential agreement, you should run—not walk—to your local attorney or photographers’ association’s legal department for a second (or even third) opinion before committing yourself to the terms.
The terms of a "rights grab" often are presented in a license, or terms of service, or even in contest rules. However, the terms also could be presented in a “credential agreement” or any other document. The fact is the "rights grab" phenomenon manifests itself in a number of ways, ranging from contract terms with clients to terms and conditions applicable to social media and beyond.
Social Media/Unsocial Rights Grab
Over the last several years, photographers—like many other businesses—have embraced various forms of social media, firmly establishing it as a marketing tool. Although the “rights grab” has been a problem for quite some time, a relatively recent development in the social-media context helped bring national attention to the issue.
In early 2009, Facebook announced a new set of terms governing the use of the social-media service. Although certain aspects of those terms didn’t change appreciably, the announcement was enough to cause more than a few people to question what appeared to be an obvious "rights grab." When addressing rights to the content that users post to Facebook, the terms provided that the user granted Facebook "an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense)...[and] to prepare derivative works of" the content posted.
As the controversy unfolded, Facebook cofounder Mark Zuckerberg wrote on The Facebook Blog, explaining: "When a person shares information on Facebook, they first need to grant Facebook a license to use that information so that we can show it to the other people they’ve asked us to share it with. Without this li-cense, we couldn’t help people share that information."
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