Photographers, beware: if you’re ever contacted by a big brand on Instagram or any other social network with a request to “share your photo,” make sure you read the fine print of any terms you’re shown. If you don’t, you could easily be agreeing to give away unlimited usage of your work.
Houston-based wedding photographer Ben Sassani recently visited New York City and extended his trip by a couple of days to do a doors-off helicopter photography flight with FlyNYON. Sassani paid around $450 for the 30-minute flight over the city.
After sharing some of his best photos from the flight on his Instagram, Sassani received a comment from Conrad New York Midtown, a luxury hotel in Manhattan owned by Hilton.
“@bensassani! We are sharing our favorite NYC views and would love to share this photo on our platforms providing you with credit,” the hotel writes. “If we have your permission, please reply to this comment with #AgreeConrad. Terms of Use: HiltonIGRules.com. Thank you!”
While many Instagram users may be flattered by a company as big as Hilton asking to share their photo and agree without much thought (by simply commenting with the hashtag #AgreeConrad), Sassani did his due diligence and actually visited the URL provided (HiltonIGRules.com) for the terms he’d be agreeing to.
Sassani was appalled by what he saw in the document.
“After reading the fine print, they essentially would be able to use the photo to profit in any shape or form they’d like (if) once I agree,” the photographer tells PetaPixel.
Here are two alarming snippets from the terms:
If your Submission is selected by Hilton, it may be displayed or appear on the Website or in other marketing, advertising or promotions together with your name and other identifying information provided […]
You hereby grant us a non-exclusive, royalty-free, worldwide, perpetual, transferable, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, sell, assign, translate, create derivative works from, distribute and display any Submission in whole or in part, as well as your name and other identifying information, including without limitation any social media identifier, handle, profile picture, image, likeness, posts, statements or other information available or provided by you, in any form, media, or technology, whether now known or hereafter developed in connection with the Hilton marketing, advertising and promotional activities referred to above.
A casual reading of this short document does seem to suggest you’d be essentially giving Hilton carte blanche to use your photo commercially for any purpose and for any length of time. For example, in addition to re-sharing the photo on Instagram, Hilton would be able to use your photo on billboards or magazine ads across the world… for free.
We asked NPPA General Counsel Mickey Osterreicher whether these terms are as alarmingly overreaching as they sound.
“While the document may be short (by other online agreement standards), the photographer had every reason to be alarmed as the terms he read grant unlimited permission to use the photo in any way they choose without any remuneration and also place all the liability for any improper use by Hilton on the photographer submitting the work,” Osterreicher tells PetaPixel. “Additionally, they can use his personal information along with the work.”
Here’s a simple breakdown Osterreicher provided of what the language means:
non-exclusive, “meaning you can license the work or give it to anyone else, but who would pay for an image already being used for free by Hilton?”
royalty-free, “meaning they don’t have to pay you anything”
worldwide, “meaning anywhere and everywhere”
perpetual, “meaning forever”
transferable, “meaning they can transfer this grant of rights to anyone”
irrevocable, “meaning you can’t take any of what you agree to back”
fully sublicensable, “meaning the can license and profit monetarily from the work they didn’t pay for”
right to use, reproduce, modify, adapt, publish, sell, assign, translate, create derivative works from, distribute and display any Submission in whole or in part, “meaning they can do whatever they want with the work including making other works from it or turning it into something else that you did not intend it to be)”
What’s more, you’d be giving Hilton permission to use your personal information (including your likeness) and agreeing that you alone would be legally liable for any lawsuits that result from Hilton’s use of your photo.
“This is exactly what has caused almost a complete market failure when it comes to images,” Osterreicher says. “Unfortunately, this is the typical overreach that we see far too much use of online. It is a rights grab that is often not read or understood. It not only harms those who submit their work for free and then makes them liable for the possible misuse of that work but also undermines those who do value their work by licensing it.
“In a supply and demand economy, this virtually destroys the market with a glut of free images. The contract could certainly be written differently but that will only happen when people stop agreeing to these unfair and onerous terms.”
The bottom line is always read the fine print.
“Just as people would not agree to buy a car, lease an apartment, or purchase a house without understanding the terms of those written contracts, so too should they read and understand these online agreements,” Osterreicher says. “If the car payments are too much, the lease too long, or the price of the house too high, commonsense dictates that you try to negotiate better terms or walk away.
“These online uploading or #hashtag ‘opportunities’ are no different.”
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