Several news outlets are reporting on a story in the Wall Street Journal that Eastman Kodak is seeking a buyer for their Kodak Gallery, the photo sharing arm of their digital camera business.
While this sale will probably be a routine transition for most customers, it does point up that one of the dark sides of online photo sharing sites is that the hosting site controls your images and can use them and transfer them in ways you may not have imagined.
The ability of online image galleries to do that comes from the Terms of Service, or ToS. You should really read those instead of just clicking through. If you do, you may be amazed at how many rights you are actually granting the host company.
Back in July, Twitpic prompted user backlash when they modified their ToS to claim ownership of the images posted there. The old ToS:
“You 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 you have uploaded to Twitpic.”
In other words, Twitpic said you couldn’t sell your own images! After virulent and vocal push-back from users, Twitpic modified their ToS:
“You retain all ownership rights to Content uploaded to Twitpic. 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.”
Even though you retain ownership, Twitpic reserves the right to sell your images to news agencies. WENN signed a deal with Twitpics to buy celebrity photos uploaded to the site. Your pictures, their sale. Nice deal, huh? And that’s nothing compared to what can happen if the company ended up going out of business.
In a bankruptcy sale the situation becomes even more difficult. Then the images in an online image sharing site become just another company asset and the bankruptcy trustee has the ability to modify the terms on which company assets are sold and distributed. So the ToS you clicked through might not offer much protection if the company goes bankrupt. The court and trustee could theoretically grant full ownership to the new buyers as part of the sale.
As far as I know there haven’t been any court cases involving the use of images obtained in a bankruptcy trial, but it’s only a matter of time. That’s why it’s a good idea to read those terms of service and think carefully about the images you store online.
If Kodak doesn’t find a buyer for Gallery and goes out of business, we may get our first test case sooner than most of us realize.