Wellington, New Zealand / Discuss

Brenda Anderson    says:

anakiwa_forever wrote

Does this mean I cant sell my own photo in the future???

deb sidelinger    says:

Yes, congratulations!

The real question in my mind is - does your cousin mind being plastered all over billboards around Auckland? Has the cousin signed a model release form? Because if you sell the photo to Yahoo under that licensing agreement, you really have no control over what happens to that image in the future.
Originally posted 53 months ago. (permalink)
deb sidelinger edited this topic 53 months ago.

*narly [deleted] says:

Assigning the copyright to Y/X effectively gives away ALL of your rights except for the right to be recognised as the author of the work. This means that even displaying the image on Flickr would be an infringement of Y/X's new rights.

I doubt that's what you really want - a better outcome for you is for you to grant Y/X a limited licence for its use on billboards for a set amount of time / limited number of billboards.

I'm assuming your cousin knows and is ok with the use of his/her image on a billboard? :-) NZ laws aren't as advanced as some others with respect to the rights of the subject (NZ largely relies on common law and the doctrine of restitution I believe), but the FTA may also contain provisions on false endorsement (I'd have to look this up though - it's been a while).

Anyway - back to the original Q, I'd be wary of signing away your rights. Unless the money is ridiculously good, assigning the copyright is risky.

If they refuse to go down the licensing route and insist that you assign the copyright over, and you still want to go ahead with it, ask them if you can be granted a 100 year license or a license in perpetuity to use the image for your own personal use (i.e. non-commercial use). At least that way you still have some rights even if you no longer own the copyright.

One thing to bear in mind is that under NZ law, any assignment of copyright must be in writing.

Feel free to Flickrmail me if you want some more info (I'm in HK so we're about 5 hours behind you)

Congrats on the recognition of the photo by the way :-)
Posted 53 months ago. (permalink)

*narly [deleted] says:

p.s. What does it specifically say about editing the image? Again, I'd be wary - another reason not to assign copyright over. If you grant them a license, I'd ask for a term that allows you to view and veto any image editing. They are unlikely to agree to something like that, but it might open the door to them putting in writing that they won't edit it to make fun of the subject etc. Tricky one to answer without seeing the specific wording though
Posted 53 months ago. (permalink)

styler*    says:

and omg i i hope they are paying you a shitload of cash to be doing such a thing.

and honestly if this was standard advertising, you would liscence for a period of 12months, after 12 months rolls over they then have to pay you XX$

remember this is not some small business so don't let them roll you over.


and gosh i wonder how many other people in the competition they have contacted, and if they all will check out with friends like you have if it's a good deal.
Posted 53 months ago. (permalink)

styler*    says:

and if they don't pay anything they are being bullies
and really uncool

and very much against the entire spirit of flickr
Posted 53 months ago. (permalink)

styler*    says:

and also please keep us updated on how things go.
Posted 53 months ago. (permalink)

Brenda Anderson    says:

One thing to mention. The TOS of the competition specifically stated:

By entering the Competition you license Yahoo!Xtra to use your submitted photos for commercial purposes including marketing and promotion on Yahoo!Xtra and third party products in any media. The photographer will receive appropriate attribution when the photo is used.

Neuköln    says:

this is why I rarely enter any of the competitions around the place; the 'chance' to "win" a $300 camera is little recomense for assigning all or most of my rights/ownership of my image.

an example is the kids photo competition in D-Photo; yeah it would be nice to "win" some canvas mount prints. Balance this against having no control over the use of my image of my kids, and to me it's cut and dried - no entry. I'll pay for some canvas it I want it.

YMMV.

good discussion, BTW.
Originally posted 53 months ago. (permalink)
Neuköln edited this topic 53 months ago.

anakiwa_forever (on holiday, back eventually!)    says:

Thanks all,
They apparently dont have a budget to pay me with and seem to expect that having my photo on a billboard and at a gallery evening will be enough...
They have also mentioned that it may be used in banner advertising online, but that this would be discussed...
All of a sudden it sounds a bit much for a photo of my cousin, which my aunt and uncle would prefer was kept a little more private - in fact, after the competition I am looking to change it to friends and family only since you can see his face.
@Brenda - I did see that in the TOS but I think I also read somewhere that they would get releases for any that they actually wanted to use. I hope.

So, the final decision is that without payment they are NOT getting rights to my photo!

ANYWAY - the actual text...(according to Nicole at Y/X they are just covering their buts with the wording, and I will still be able to sell my photo and they wont use it in any way that doesnt have my permission because "they are nice people". Why dont I believe that about Xtra???)

In consideration of Yahoo!Xtra New Zealand Limited (“Yahoo!Xtra”) using the Photograph in an advertising campaign with Flickr ID attribution the Photographer acknowledges and agree that Yahoo!Xtra:

1. the rights to exploit anywhere in the world, any such depictions or elements in any manner and for any purpose by any and all means now known or invented in the future (including without limitation, on the internet) and the Photographer irrevocably and unconditionally grants to the client all consents and waivers required to the client’s use of any copyright, moral rights or other intellectual property in any such depiction or element;
2. has the right to reproduce, communicate, transmit, broadcast, exhibit, sell and distribute the Photograph or any part of it by any means throughout the world in any media whether now known or hereafter devised (including by means of ancillary rights) in perpetuity;
3. acknowledge and agree that Yahoo!Xtra owns and shall own all rights, title and interest (including copyright) in the Photograph; and
4. consent, to the extent permitted by law, to any of Yahoo!Xtra's acts or omissions taking place in connection with the Photograph which may infringe any of my moral rights and performing rights or similar rights granted under any law in any country of the world.
Reference to 'Photograph' in this Release includes any other edited versions and excerpts made by Yahoo!Xtra and includes any previously recorded material made by Yahoo!Xtra
Posted 53 months ago. (permalink)

styler*    says:

jeesh what a freaking rip off

and they don't have any money?
what a big pile of rubbish
Posted 53 months ago. (permalink)

Brenda Anderson    says:

When the competition TOS was first published, it said that they could use any photos submitted for commercial use, and the winner's photo would be attributed. I questioned it straight away, and they changed the terms to say that they would attribute the photographer of any photo they used (not just the one winner).

I thought at the time that it sounded a bit like they didn't understand IP and copyright very well... :( or that they were hoping to get a whole slew of free photos to use for future advertising purposes from people who don't care about their rights.
Originally posted 53 months ago. (permalink)
Brenda Anderson edited this topic 53 months ago.

Henry Maddocks    says:

This is Telecom you're talking about remember.
Posted 53 months ago. (permalink)

anakiwa_forever (on holiday, back eventually!)    says:

@Brenda - I'm going with the second option - they are hoping to get a whole pile of free photos to use. If it werent too late to withdraw my photo from the competition I would. I think they only have it at lower resolution anyway, which makes it failry useless for almost anything. I also noticed in the Q's for the comp that they seemed to be trying to persuade people to give them access to their higher resolution images...
Dont trust Xtra as far as I can throw them personally! How are they to know that I'm not already some sort of pro photographer who is selling photos myself? (Oh, wait... I suppose if you count selling on TradeMe, I guess I am...)

I was willing to gift my selected photos to Te Papa as they are not keeping the copyright or using them for commercial gain as such (they are for a new display that will be in for 10 years or so, which means its not a pay each time one), but I'm not happy about giving away my rights in perpetuity for no monetary gain.

You guys are SO helpful... Thanks heaps. Now I know theres no money involved, I dont feel bad at all about saying no!
Posted 53 months ago. (permalink)

anakiwa_forever (on holiday, back eventually!)    says:

I have decided that I LOVE picknik... I know I might well be far too late, but I have just downgraded the resolution on the photo that I entered into the comp.
Replacing the photo might knock me out of the comp altogether (brenda will soon tell me - she knows all the ins and outs of flickr!), but right now I am more concerned about them laying their hands on even my large copy as I was shooting at HQ on a 10mp camera, so the original photo size was near on 2MB.
Yes, I have learnt that lesson now and am reducing the size of all my photos through photoshop before uploading them now - I didnt have that capacity before!
Given there were over 3000 photos in the competition, from about 200 entrants, and I only entered 1... I dont think I stood much chance of winning anyway...

Thanks all for your support and encouragement. You'll be thrilled to know that a photo I took at the Thorndon Fair has been requested for use on an internet based travel guide about Wellington as well. I'm happy to give that one away as I think its funny, but it has no deeper meaning to me!

Posted 53 months ago. (permalink)

Neuköln    says:

"ANYWAY - the actual text...(according to Nicole at Y/X they are just covering their buts with the wording, and I will still be able to sell my photo and they wont use it in any way that doesnt have my permission because "they are nice people". "

If that's your T's&C's, they'ew what binds the contract; not some hollow assurance from an employee.

If you want to get out of this, you could point out you don't have a release for your cousin, and are concerned that you and Y/X may be implicated in any action your cousin may take for commercial use of his/her image without her consent. Regardless of the law, I doubt Y/X would want any kind of publicity surrounding such action, should it be brought to bear.
Posted 53 months ago. (permalink)

styler*    says:

why don't they say that in the contract?
they have legal people who would allow this, sounds like another case of double talk from nz's largest teleco.

after the debacle over emails last year, i'm shocked they would be so rude
Posted 53 months ago. (permalink)

anakiwa_forever (on holiday, back eventually!)    says:

I see you have taken them to task over there as well Ellipse...
Very entertaining!
I added my 2 cents to the debate too... in effect telling Nicole that she aint gettin my photo for her billboards. Especially not one like that. Most of the shots I have that would be considered for something like that are too precious to sell the copyright on because I am justifiably proud of them and want to show them off!
Posted 53 months ago. (permalink)

Brenda Anderson    says:

As I mentioned in that other thread, I don't really have a problem with licensing my photo for free for commercial usage (particularly for a company I like, or if it's just a photo I took with no expectation of making money from it anyway)... but assigning copyright is not something I would ever do lightly. If the photo is "good enough" to be used in an advertising campaign, it must have some worth! :)
Posted 53 months ago. (permalink)

styler*    says:

i've blogged about it as well, this disgusts me, and i'm making sure everyone i know knows about it.

I am really unhappy the the entire spirit of sharing and flickr is being exploited.

I'm more than happy for yahoo/xtra to prove me wrong, but from the info i have it stinks something nasty. I'm tempted to complain to the powers that be at flickr HQ. Can you imagine heather doing anything like this?
= no

i don't recall anything this nasty occurring over 24 hours at flickr
www.flickr.com/groups/24flickr/
Posted 53 months ago. (permalink)

eeyore nz    says:

Yes, this stinks. Just a couple of thoughts to add:

1. You already agreed to the competition's terms when you joined the group, and you have clearly won. If they subsequently refuse to give you the due reward because you refuse to agree to additional terms, I'd say they're opening themselves up to a world of liability. I mean, you can't shift the goal-posts. You obviously can't run a competition and then only later tell the winner they have to pay for the prize themselves. I can't see how this is much different.

2. This agreement will have been cooked up by Y/X, and probably only Y! (Australia) and Xtra/Telecom (in NZ) are even aware of it. It occurs to me that the generally good people over at Flickr HQ wouldn't be so happy to hear about this. A complaint directly to them about the behaviour of Y/X (and the negative affect on the Flickr brand as a result) might have interesting results.
Posted 53 months ago. (permalink)

Brenda Anderson    says:

theblackvegetable wrote

you have clearly won

eeyore nz    says:

Ah. Very sneaky. And a form of intimidation, since you wonder what your chances are if you reject the agreement :(
Posted 53 months ago. (permalink)

Henry Maddocks    says:

@ellipse

I hate Telecom as much as the next guy (probably more as I used to work for them) but I think you're being a bit dramatic. You are probably giving them too much credit if you think they are being bastards deliberately. It's more likely incompetence.

This sort of T&C is pretty standard in competitions. Some lawyer probably just pulled it out of a drawer some where and just changed the competition name. The point of these contracts is to avoid the competition organiser incurring huge ongoing licensing costs. I don't believe they ran the competition just to score some cheap content.

Also if they use the shot, they don't want you to then give it to Telstra so they can use it to take the piss out of Telecom (assuming they could, I don't know what the shot is).

I'd suggest @anakiwa_forever approaches them with her concerns. You never know, they may come to the party. If they don't then you've lost nothing.

This being the case I don't think Flickr will care.

On the other hand, the way they have marketed and ran the competition is a bit of a joke in my opinion which is par for the course for Telecom.

I have no idea what @theblackvegetable is talking about.

Slightly OT, this whole copyright paranoia that every one is going through at the moment is going to kill Flickr if you let it. Flickr is a "photo SHARING" website, not a "photo hiding because I don't trust anyone because they might steal my stuff and I might want to make some cash in the future" website
Posted 53 months ago. (permalink)

anakiwa_forever (on holiday, back eventually!)    says:

Hi Henry

Nicole at Y/X has been helpful to the extent she can be... But what she has told me about my continuing rights over my photo directly contradicts what the contract she has asked me to sign states, which is my concern.
I'm not in photography to make money, but I am also not in it for other companies to make money either. They want to "buy" the copyright to my photo in perpetuity for no payment and then reserve the rights to alter it as they see fit.
I wouldnt have a problem with this if it werent for the fact its a photo of a close family member and I worry about what might happen to that photo in the future. A vague promise from a staff member that they are "nice people" and wouldnt do something like that means nothing. Maybe she is, but who says their marketing execs are going to be in the future???
@theblackvegetable actually voiced one of my first concerns - they obviously like my photo... The judging is still going on at the moment. Is me turning this down because I dont like the contract going to mean they turf my photo out of the finalists if it has made it? (In all honesty, as much as I would like a world trip, right now I dont actually care!)

So... The reason I dont want to sell this photo for nothing is simply because it has intrinsic value to me and my family. It would be awesome to see my name in lights, (and think of the traffic I might get to my photos - I might finally make explore - 3000+ views in less than 24 hours doesnt seem to be enough...) but its not worth risking the break with my family.
If another contract comes through which doesnt mean they own it, but, say, limited me to selling it to private entities or similar (and I wouldnt privately sell this one to other than family!) then that would be fine. I just want to continue owning the rights to a family holiday snapshot!
Posted 53 months ago. (permalink)

Henry Maddocks    says:

@anakiwa_forever

I understand what you are saying and I agree. I was just commenting on the conspiracy theory tone of some of the comments.

As for intimidation, I think if you don't agree to the T&Cs you will be disqualified regardless. I don't think there is any malice in that.

My last bit was just a bit of rant that I wanted to get off my chest. Wasn't directed at anyone in particular, certainly not you. On a lot of the sites i visit there has been a huge amount of complaining about this and I think people need to get over them selves.
Posted 53 months ago. (permalink)

Henry Maddocks    says:

I have one question though. @theblackvegetable said "You already agreed to the competition's terms when you joined the group"

Surely that's not true, other wise Telecom would own all of the photos in the pool already.
Posted 53 months ago. (permalink)

styler*    says:

henry it's not a conspiracy tone, it's that y/x are being unfair to some very brilliant photographers.

and it's ok to direct it at me, i'm more than happy to discuss this.

The T&C of the competition are vastly different from what they are now asking some users to sign.

Y/X does not own the copyright to all the images in the pool, they have the right to use them. They do not own them.
ownership is different from rights to use.

everyone agreed to Y/X using their images entering the competition. I have no beef with that.
But nobody agreed to
- Y/X owing copyright forever
- Y/X not attributing the image owner in promotions
- in return for owning the copyright forever reimbursing people

Yes flickr is sharing
and many people like me license their photos for sharing

This is not sharing, this is owning.
This is taking away ownership from the flickr user
they want that for free. That's not cool.
that's not sharing, that's taking


to say they are just incompetent, well that doesn't make it ok.
to say they didn't mean it, that doesn't make it ok
to say it's standard - that doesn't make it ok

taking away people rights to an image forever without reimbursement sucks.
And i don't think any of the brilliant photographers who y/x have contacted should have to take it.
Posted 53 months ago. (permalink)

Henry Maddocks    says:

It's not unfair. All they have done is ask if they can use the photo, albeit with unreasonable terms. They haven't taken it under false pretences. or FORCED anyone to do anything they don't want to (as far as I'm aware).

You say "it's not sharing, that's taking". But they haven't taken anything have they? Nobody has agreed to letting Y/X have the images have they?

Sure if @anakiwa_forever had agreed to let them have the pic without understanding the terms then they could be accused of taking advantage of some one's naivety, but that hasn't happened in this case.
Posted 53 months ago. (permalink)

anakiwa_forever (on holiday, back eventually!)    says:

Very well put Henry Maddocks...

Its unreasonable, and thats my only complaint really - and was my main concern! I am worried how many others have accepted the terms without reading, but I probably would have too if it hadnt been a family member in the photo! They did dodge the money question till I asked it outright as well.

There is someone in the Y/X competition stream who has read, understood and signed the waiver. They say their photo isnt that valuable to them. If its well liked from the advertising and someone asks to buy a print... what will they do then?!?!!
Posted 53 months ago. (permalink)

Neuköln    says:

hey, where's this pool, and where's the competition stream??
Posted 53 months ago. (permalink)

Brenda Anderson    says:

www.flickr.com/groups/yahooxtra/
Posted 53 months ago. (permalink)

*narly [deleted] says:

Interesting thread.

I totally agree with , Y/X haven't taken anything away - they have simply made an exceptionally poor offer to winners. No different to if I walked up to someone in the street and offered to buy their jacket off them for $1. It's a crap offer, so you say no.

Unfortunately, in these situations people all too rarely actually read what they are signing. If you sign a contract without reading it and fully understanding it, then you can't blame anyone else for the consequences. It's not like they're approaching 8 year olds and asking them to assign copyright over - these are adults entering competitions, adults who are (presumably) more than capable of making informed decisions.

The only potential saving grace in this situation is that Y/X's representatives seem to be contradicting the terms of the contract that they are asking people to sign - which could open the doors to something along the lines of FTA misrepresentation.

Thankfully, was smart enough to read the T&Cs regarding entry into the competition, and even more importantly read the T&Cs regarding the copyright assignment of winning photos. If it were someone else then this thread could have been "I've assigned copyright over to Y/X and didn't know I did it - help!"

Anyway, moral of the thread (in my eyes) is 'Read a contract BEFORE you sign it." Kudos to for going about it in exactly the right way.
Posted 53 months ago. (permalink)

styler*    says:

yes they are not forcing anyone
but to suggest what they have, especially since this was a flickr based promotion thing - it stinks.

and why not offer some free pro accounts, or something like that.
I suspect many flickr users would be keen on a years flickr pro added to their account.
When flickr merged with yahoo at one point some yahoo sites were using flickr users images, now becuase they were thumbnails, yada yada, it was technically ok to use the images.
but as stewart said at the time, at flickr it's not enough to be following the law, but we should be doing better than that, the minium is not enough.

So in that spirit i think this is uncool
Posted 53 months ago. (permalink)

Henry Maddocks    says:

That's a very good idea. Seeing as this is a joint Xtra/Yahoo promotion the least they could do is throw some Flickr swag around. Some one should suggest that in the competition group. That would have enticed me to have a go.

All I can say is I'm glad I didn't get involved. It never really smelt right from the start. Especially that market rubbish about xtra trying to foster NZ use of Flickr when people like this group have been doing for ages. All a bit crap really.

Oh, and the views expressed here aren't necessarily those of my employer :)
Posted 53 months ago. (permalink)

Neuköln    says:

speaking of free flickr accounts, I read the other day (I think it was in the herald) that xtra subscribers get free wifi *and* a free pro flickr account... it's just it's so poorly promoted hardly anyone knows about it. like that thing in the hitchhiker's guide where the plans for the hyperspace bypass had been available from the planning office... on alpha centaurii...

thanks for the link, Brenda. "damn. I missed the competition.".
Originally posted 53 months ago. (permalink)
Neuköln edited this topic 53 months ago.

Brenda Anderson    says:

Yes, if you have an XTRA account, you get a free flickr Pro account.
Posted 53 months ago. (permalink)

anakiwa_forever (on holiday, back eventually!)    says:

A free flickr account is no way enough to entice me to sign up to xtra... I'll stick to my paradise dialup for now thanks... (espcially since this year I become a poor student again!)
Posted 53 months ago. (permalink)

Henry Maddocks    says:

Dialup! How do you survive on Flickr with dialup?
Posted 53 months ago. (permalink)

styler*    says:

Russell Brown's Take on the whole thing
publicaddress.net/default,4772.sm#post4772
Posted 53 months ago. (permalink)

anakiwa_forever (on holiday, back eventually!)    says:

lol, henry
I only do photo uploading at work... I browse here occasionally on home dialup (like now), and my computer means my dial up is faster than my parents broadband.
Was talking to someone who is part of the AIPA (or similar abbreviation, something about artistic and illustrative photographers) and he said they would be interested in taking this up... Should have given him the link to here, but I at least told him about where we are having this discussion.
Posted 53 months ago. (permalink)

styler*    says:

Well if anyone makes it to the big event they've got planned, please do ask the judges their thoughts on it all.
Posted 53 months ago. (permalink)