Twitpic, a user-generated content service that simplifies the process of sharing photographs and other media through Twitter, came under fire earlier this year for changes to its Terms of Service that appeared to dramatically expand the rights granted to Twitpic by its users— and that were described by some media outlets as a “copyright grab.”
Twitpic’s original Terms of Service stated that “all images uploaded are copyright their respective owners,” and that by uploading photos to Twitpic, users gave Twitpic “permission to use or distribute” such photos on Twitpic.com and affiliated sites. As highlighted in Eric Goldman’s Technology & Marketing Law Blog, Twitpic revised its Terms of Service without notice on May 4, 2011, to state that users who share content via Twitpic “may not grant permission to photographic agencies, photographic libraries, media organizations, news organizations, entertainment organizations, media libraries, or media agencies to retrieve from Twitpic for distribution, license, or any other use, content [users] have uploaded to Twitpic.” Goldman’s blog notes that this language suggested that, if a user posted content through Twitpic, the user could not then license that content to other third parties, even though the license grant to Twitpic was putatively nonexclusive. That said, the prohibition only applied to retrieval of the uploaded content “from Twitpic” for further use. Whatever its intent, the offending language was deleted in Twitpic’s next revision to its Terms of Service, which came six days later along with a clarification from Twitpic regarding its revised terms.
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The further-revised (and currently governing) version of Twitpic’s Terms of Service states that “all content uploaded to Twitpic is copyright the respective owners,” and clearly specifies the licenses that Twitpic users are granting. The first licenses are to Twitpic, including both a broad license similar to the one found in Twitpic’s original Terms of Service (“permission to use or distribute [the user’s] content on Twitpic.com or affiliated sites”), along with a more detailed nonexclusive, sublicensable license that permits Twitpic to use, reproduce, distribute, prepare derivative works of, display and perform a user’s uploaded content in connection with the Twitpic service and Twitpic’s, its affiliates’ and successors’ businesses, including for “promoting and redistributing” Twitpic’s service and derivative works of the service, in any format and through any channel.
The second license is a grant to other users of Twitpic, giving them an express right to use, distribute, display and perform a user’s uploaded content “through the functionality of [Twitpic] and under these Terms of Service.” (These licenses terminate within a commercially reasonable time after a user removes or deletes his or her content from Twitpic, however, any sublicense granted prior to such termination “may be perpetual and irrevocable.”)
The licenses to Twitpic itself are very similar to the ones demanded by most services built around user-generated content—and the inclusion of a license-back of each user’s content to the general user population, albeit restricted to Twitpic’s own functionality, addresses an issue that is not often raised in website terms and conditions. Still, other language in Twitpic’s Terms of Service, when combined with these broad grants, has stirred concerns among Twitpic users. Although “it is not acceptable to copy or save another user’s content from Twitpic and upload it to other sites for redistribution and dissemination,” the terms also state that in order “to publish another Twitpic user’s content for any commercial purposes [other than simple ‘Retweets’] … whether online, in print publication, television, or any other format, you are required to obtain permission from Twitpic in advance of said usage and attribute credit to Twitpic as the source where you have obtained the content” (emphasis added). So it appears that the Terms of Service both prohibit users’ commercial use of other user’s content, and expressly contemplate such use so long as that use is controlled by Twitpic (rather than the uploading user) in terms of both approval and functionality.
More recently, it was reported that World Entertainment News Network (“WENN”) and Twitpic had reached an agreement making WENN Twitpic’s exclusive photo agency, which, according to executives, was intended to facilitate legitimate, authorized use of Twitpic images as part of breaking news and entertainment stories. Some users are reportedly worried that they will not be able to opt out of the WENN/Twitpic arrangement, even though WENN’s CEO has stated that only a very small number of celebrities’ images will be distributed via WENN—and according to The New York Times, certain celebrities whose pictures were to be distributed by WENN have stopped using Twitpic. Still, despite much sound and fury from the blogosphere, no mass exodus from the popular content-sharing service has materialized as a result of these developments.