No one reads them. They’re those little links next to the checkbox. You know that they’re long. You know that they’re boring.
Do you know if you still own the images you upload to a photo-sharing site? Is that song that you wrote and performed still yours after you upload it to MTV? Billy Bragg wrote an article for the Guardian a while back about the ownership of intellectual property.
If anyone can explain to me why some sections (and not others) of legal terms and conditions need to be written completely in upper case, please let me know. The only reason that I’ve managed to think up is that it renders the text relatively unreadable. So, you scan down through something like this:
A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE SERVICE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE SERVICE. IMMEDIATELY DISCONTINUE USE OF THE SERVICE AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE SERVICE: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.
Seizures? I’m not making this up. This warning has appeared on multiple sites. For most sites, I assume it’s an accessibility warning about a bit of Flash animation. If you are experiencing dry mouth, chest pains, general lethargy or depression when exposed to my blog, please consult a physician immediately.
Etsy manages to do this relatively painlessly. Their terms and conditions has a “basic terms” introduction. It gives you the feeling that you’re responsible for your own actions in their community. Then, it clearly eases you into the idea that spamming people through the site is a bad thing. Their terms and conditions do go on to have a couple UPPER CASE PARAGRAPHS. But, the positive feeling that the terms and conditions are there for you – and to protect you against others – is still there.
Even Microsoft is getting this right. It’s long, and the thing could be clearer. But, it mentions the one thing that photo-sharing sites never seem to mention.
Please respect the rights of artists and creators. Content such as music, photos and video may be protected by copyright. People appearing in content may have a right to control use of their image. You may not share other people’s content unless you own the rights or have permission from the owner.
People appearing in content may have a right to control use of their image. This is a single point that Flickr and Creative Commons seem to totally ignore. There is nothing in the fine print on Flickr or Creative Commons about the need for model releases on photographs if the people are recognizable. You can’t own the image or grant other people rights to do what they please with it unless you have a signed model release.
There are two parts to model releases. When I asked a smart lawyer at a BarCamp about this once, he brought up the issue of defamation. I’d never really thought about defamation. If you were to upload a photo of someone you didn’t know to Flickr, let’s say you caption it with something unflattering or offensive to the subject. It’s not inconceivable that the subject will see the photo of themselves. In the land of a billion lawsuits, I’m surprised this hasn’t come up yet.
The second issue (and the one closest to my heart) is that you can’t upload a photo to Flickr of a recognizable person and use the Creative Commons’ No Derivative Works or Share Alike licenses. Check out Flickr’s own Creative Commons page showing photos that have recently been licensed. It’s full of people.
In the end, I think my complaint about Flickr and Creative Commons is that — instead of having terms and conditions that acknowledge this basic legal principle — their terms and conditions are hugely oversimplified. The only people for whom you don’t need a model release are yourself and your children. (Unless, you take photos of your kids in the style of Sally Mann because that’s something completely different.)
Kodak has the most complete information about copyright and use. Flickr just has a confusing self-help page with someone asking how to have photos of themselves removed. As helpful as forums can sometimes be, I doubt anyone there is a lawyer. Some of them might just play a lawyer on the web.
