Untangling Terms of Use

Q I wanted to use a Web site such as Kodak, Shutterfly, PhotoWorks or Snapfish to order a mousepad with my ancestors’ photos on it. But all these sites’ terms of use state that I have to give up my rights to the photos! For example, PhotoWorks’ terms say, “You hereby grant to PhotoWorks, Inc. non-exclusive, royalty-free license to use, publish, copy, modify, transmit, display and distribute your Content for the purpose of delivering the Service and warrant that you have a right to grant such a license. In addition, you warrant that all moral rights in any Content and uploaded materials have been waived and do hereby waive any such moral rights.” I feel that if I use the service of one of these companies, I’ve already paid it for the service, therefore it does not–and should not–have any rights to my photos. Why do these companies think they should be able to do this?

A You’ll find this type of standard disclaimer when you use any photo Web site. Unfortunately, all the legal mumbo jumbo and complicated wording make most companies’ terms of use, er, challenging for the average consumer to understand. We’re not legal experts and therefore can’t offer legal opinions. But as scary as this clause may sound, it doesn’t appear that PhotoWorks is trying to take away any rights from its customers. Let’s look at it one part at a time.

1) The first key phrase is “for the purpose of delivering the service.” In order to produce your calendar, put your photos on a CD, create an album, or make whatever product you’ve ordered, the company of course has to digitally reproduce, possibly edit and print your photo. Therefore, you’ll be required to legally grant the company the right to use your photo. You’re only giving the company the right to create the product you asked it to, nothing else.

2) You grant this right “non-exclusively”–meaning that you also can extend your rights to anyone or any other company you wish.

3) The statement “[you] warrant that you have a right to grant such a license” is also important: It’s an acknowledgment that you actually have the copyright or permission to use the photos you upload. This statement protects the company against legal action if a customer reproduces photographs illegally. For example, say you get your kid’s picture taken at Olan Mills, then you scan one of the photos and upload it to PhotoWorks so you can order a product. That’s a violation of copyright law, because professional photo studios almost always copyright their work (that way, you have to buy the photos from that studio). It would be impossible for PhotoWorks or any such site to vet all the photos its users upload. By PhotoWorks’ inclusion of this statement, Olan Mills (in this example) couldn’t sue PhotoWorks if PhotoWorks’ users were reproducing Olan Mills’ copyrighted photographs without the studio’s permission.

4) “Moral rights” has nothing to do with morality, but with the copyright holder’s right to attribution and to the integrity of the work (see http://en.wikipedia.org/wiki/Moral_rights). Again, in my not-legal opinion, by “waiving moral” rights, you’re waiving your right to have a “credit line” on a PhotoWorks products and allowing the company to “change” the image by affixing it to a coffee mug etc.

When you boil it down, what PhotoWorks is asking is common-sense stuff and shouldn’t raise red flags for most family historians. Of course, some services or companies may include some terms of use that you simply don’t agree with—which is why we encourage consumers not to ignore them. If you see something that concerns you, you can choose not to use that service—before it’s too late.