Small Print Words Have BIG Impact for Instagram and Its Users

The big impact of those  fine print words in user agreements on internet sites was demonstrated recently by Instagram, the photo sharing site.

As noted in several previous posts, the terms of user agreements have a big impact on a users intellectual property rights, whether for written words or images.  That little "click" users make agreeing to terms of service creates a binding contract. And just because you don't read those agreements does not make them any less binding.

Instagram terms of use*

Facebook recently acquired Instagram.  And one of its first steps was to change the terms of service in a BIG way.  The revised terms of service gave Instagram (ne Facebook) the right to sell your photos, to do without notice, and to pocket all the proceeds from the sale.  And the added kicker - even if users stopped using the service, unless it was done before January 16, 2013, Facebook had the right to sell all the photos uploaded to the site, even if the person quit Instagram.  And users could not opt out of any of these terms.

As everyone who has used any such site knows, these are "take it or leave it" terms.  They are not negotiated with users.  And in the case of the new Instagram terms, users could not select to opt out.

Royalty free image via Photo Pin **

Except a funny thing happened on Facebook's way to the bank with your photos.  As news of the new terms was publicized, an internet revolt erupted.  The reaction was so intense that Facebook faced the real possibility that the company they had just purchased was going to collapse in the wake of mass defections of users.

So Facebook took the only course available. Within 48 hours, Instagram reversed its position and withdrew the newly announced change in terms.

The lessons:

First, those fine-print terms of use mean something, including signing over some or all of your intellectual property rights.   When you join a site, pay attention to the terms of use.

Second, every once in a while the little guy wins one.


* photo credit: <a href="http://www.flickr.com/photos/mdurwin/8283481864/">mdurwin2</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-sa/2.0/">cc</a>

** photo credit: <a href="http://www.flickr.com/photos/madison_guy/6433049147/">Madison Guy</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-sa/2.0/">cc</a>

Copyright and Contract: Really Small Print Can Have Really BIG Consequences

*Royalty-free image via Pin Point:photo credit below

For the past two weeks I've gone over issues relating to copyright ownership, including work for hire, the distinction between being an employee and an independent contractor, and how all of this impacts ownership of copyright.

It's pretty complicated legal stuff.  Others would use a different "s" word.

The plain fact is that most issues regarding copyright ownership can and are resolved terms by the terms a contract.

Whether it's called a Release, or Consent, or Agreement, or Terms of Use, Submission Guidelines, or Waiver, or Authorization, or something else, a document that allows someone else to publish your work, or a derivative of your work, is a contract. And the terms of that contract have consequences.

If you are signing one of these,  or if you are making an online submission under Terms of Use or Submission Guidelines, you are doing something that gives someone else a part of your bundle of intellectual property rights that you possess in your own work.  In other words, you are turning over some (or possibly all) of your rights you have in your own work product.

**Royalty-free image via Pin Point: photo credit below

So pay attention to the fine print in any contract. This includes those pesky Terms and Conditions  you click agreement to on so many websites.

For example, when you join Facebook, that "click" grants a license that any content you post as "public"  can be copied and re-posted by any other Facebook user.  This includes your writings and your photos.

Those small print words mean something.  And they can make a substantial difference in your rights.

Can you negotiate these terms?  Well yes -- and no.  You have the right to negotiate any terms in an agreement.  But in many cases (Facebook for example), it is a take-it-or-leave-it proposition.  If you don't like the terms, don't sign or make the submission. 

But sometimes terms are negotiable.  That's where a talented literary agent can become your best friend.  Movie rights.  Foreign rights.  E-book rights. Derivative rights.  Merchandising rights. They are all part of the bundle of intellectual property rights you possess when you create a work.  An experienced lawyer can help you understand those legal rights.  A good agent can help you negotiate them as part of a deal.

So read those contracts closely.  Talk with your agent, if you have one. Consult with an attorney who knows something about copyright and publishing.

Above all, make sure you understand what rights you are signing over to someone else when you sign or click to create a contract.


*photo credit: <a href="http://www.flickr.com/photos/hi-phi/425148111/">[phil h]</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-nd/2.0/">cc</a>

**photo credit: <a href="http://www.flickr.com/photos/mjaniec/5403877185/">mjaniec</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-sa/2.0/">cc</a>

Writers: Are You An Employee or An Independent Contractor?

Royalty free image via Photo Pin: See photo credit below

So we've established that under general principles, the copyright for a work for hire belongs to the employer, but if the work is done by an independent contractor, even under explicit directions, the copyright belongs to the artist.

But what if you are hired for a specific project?  How does the law decide who is an employee and who is an independent contractor?

A good starting point is the 20-point test established by the IRS in 1987 for deciding who is an employee and who is an independent contractor for payroll purposes.  While this is not binding on the issue of copyright ownership, its a quick referral list that is helpful.  But in reviewing this list, you must remember that the U.S. Supreme Court, courts established that ultimate classification depends upon general principles of common law, a rather amorphous standard that defies precision.

Here's the IRS's 20-point test in what I hope is more understandable language than the regulation.

1. Instructions: A person who is required to comply with specific instructions about the time, place and manner of work is usually considered an employee.

2. Training: An employee usually receives training; an independent contractor does not usual receive training from the purchaser of the services.

3. Integration: The greater the work fits into the purchasers overall business, the greater chance that an employer-employee relationship exists. (A sales manager is an employee, the interior decorator who furnishes the office probably is not.)

4. Services Rendered Personally: If the services must be rendered personally, it is usually an employment relationship (hourly employee can't send in Uncle Bob to do his job for the day).  However, with artists this is less instructive, as a publisher who contracts with Michael Connelly to do a story does not expect it to be written by someone else).

5. Hiring, Supervising, and Paying Assistants:  If the purchaser is also paying for assistants and supervising the work, this is a strong indication of an employment relationship

6. Continuing Relationship:  A continuing relationship is generally one of employer-employee. Independent contractors generally work on an assignment by assignment basis.

7. Set Hours of Work: If the purchaser sets your hours of work, it is a strong indication you are an employee

8. Full Time Required: If you must devote full time to the business of the employer, it is highly likely you are an employee

9. Doing Work on the Employer's Premises: Use of office space, telephone, stenographic service or the use of heavy equipment usually indicates an employer-employee relationship.

10. Order or Sequence Set: If you must perform work in an order established by the purchaser, it is likely that you are an employee.

11. Oral or Written Reports: Continuous reporting indicates, but is not conclusive of an employer-employee relationship.

12. Payment by Hour, Week, or Month: Regular periodic paychecks indicate an employer-employee relationship.  Independent contractors get paid in a lump sum or in agreed installments on a per project basis.

13. Payment of Business and/or Travel Expenses: If the employer pays the person for business and/or traveling expenses, the person is ordinarily an employee. On the other hand, Phillip Marlow and Sam Spade always charged for expenses, so it's not conclusive.

14. Furnishing of Tools, Machinery and Materials: If the person paying is providing you with your tools and materials, you are probably an employee. Newspapers provide computers;  free-lance writers provide their own computers.

15. Significant Investment: If you invested significant funds of your own in your business, your are probably an independent contractor.

16. Working for More Than One Firm: If you work for a number of companies at the same time you are probably an independent contractor.

17. Realization of Profits or Losses: Can you make a profit or suffer a loss?  If so, you are likely an independent contractor.

18. Making Services Available to the General Public:  If anyone with the money can hire you to do work for them, you are probably an independent contractor.

19. Right to Hire and Fire:  If the employer has the right to hire and fire, it is likely an employer-employee relationship.

20. Right to Terminate: If the purchaser can terminate the relationship at any time without incurring a liability, it is likely an employer-employee relationship. On the other hand, if termination gives rise to potential liability for breach of contract, it is likely an independent contractor relationship

The best way to determine copyright ownership is by written contract.  That's the topic for the next post.


photo credit: <a href="http://www.flickr.com/photos/lowaiping/3665249853/">yuki-ona</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-nd/2.0/">cc</a>

Plagiarism, the Law and Its Aftermath

In 2006, the literary world was blown away by a half-million dollar advance given by Little Brown to a 17-year-old incoming Harvard freshman with a near-perfect SAT score.  Her book, How Opal Mehta Got Kissed, Got Wild, and Got a Life, was the hottest thing in print.  So hot that Dreamworks bought the movie rights before publication.

Kaavya Viswanathan, a young Indian-American, was suddenly weathy, famous, and it seemed the world was her oyster.

Then someone on the Harvard Crimson read her book and thought it seemed a little familiar.  A little too familiar.  Some quick research revealed that large segments of Viswanathan's book were taken directly from the first two Jessica Darling novels by popular "chic-lit" novelist Megan McCafferty.

It was clear and blatant plagiarism.

In an instant, the whole dream dissolved into a nightmare.  The television appearances were not happy promotional fluff, but were rather accusatory news interviews.   Little Brown immediately recalled all copies of the book from warehouses and bookstores.  Return of the advance was demanded, and although it was kept confidential, the movie deal fell apart.

Further investigation showed Viswanathan also copied from several other authors, including English novelist of Indian heritage Salmon Rusdie. 

Viswanathan protest her innocence, claiming that her copying was innocent as a result of reading the copied authors.  She simply didn't remember the source when she was writing.  But few believed that such exact and extensive copying could have been the result of inadvertence or innocence.

The case illustrates when plagiarism expands beyond the realm of  ethics and into law. Viswanathan clearly breached her contract with Little Brown by not providing an original work.  She also infringed on the copyright of McCafferty, Rushdie and several other authors, for which she could be held liable for statutory damages.

Although the matter was resolved out of court, she also could have faced both civil and criminal liability for fraud and theft by misrepresentation. 

So what happened to Ms. Viswanathan?  Did her embarrassment drive her from Harvard?  Did it destroy her life before it had hardly started.  Did it relegate her to a career as a Wal-Mart greeter?

Not hardly.

She graduated from Harvard in 2008, then went on to Georgetown Law School where she landed a 2011 summer associate position with the swank New York law firm of Sullivan and Cromwell.  Although she would have graduated in 2012, there is no word as to where she landed.




Note:  In 2011, Viswanathan's mother and father were tragically killed in a plane crash as her father flew his small private plane home after the couple had spent a weekend visiting their daughter in Washington, D.C.

Graphic Book Offers Great Primer on Copyright and Fair Use

While doing some recent research, I stumbled on a graphic book -- a comic book, if you like -- that is one of the best short primers I've found on the law of copyright and fair use.

Bound by Law: Tales from the Public Domain looks like a comic book, or maybe more accurately, a graphic novel.  But don't let its for fool you.  This is maybe the best short-hand treatment of the law of copyright and fair use that I've come across. Sit down with this paperback and 40 minutes later you will have a pretty good foundation on laws that are essential to writers and other creative artists.

The book is written and illustrated by Keith Aoki, James Boyle and Jennifer Jenkins, and was published by Duke University Press in 2008.  It features a foreword by Davis Guggenheim, Academy Award winning director of "An Inconvenient Truth," with a very insightful introduction by Cory Doctorow, award winning Sci-Fi writer & co-editor of Boing Boing website.   

The book is geared toward documentary film makers, but the approach and content is equally useful for writers as it is for film makers.  If you feel at a loss about your intellectual property rights, or your right to use or comment on the works of others, this is a great place to start.

Bound by Law is available on Amazon in a new expanded Fifth Edition.  To view the book on Amazon, click here.

*Image by by Keith Aoki, James Boyle and Jennifer Jenkins, used pursuant to Creative Commons non-commercial use license.

"You Wrote It" May Not Mean "You Own It"

Just because you wrote it (or said it), doesn't mean that you own it.

That's the lesson of the current fight over catch phrases created by "The Situation" on the popular M-TV show Jersey Shore.  It is also a lesson for writers who sign contracts or do work for hire.  Your words may no longer be your own.

Viacom, parent company of M-TV, has sued Michael "The Situation" Sorrentino and MPS Productions (his brother's production company) over the rights to such timeless phrases as "twinning"  (having sex with twins) and "GTL" (gym, tan, laundry) - apparently "The Situation's" daily routine.

The lawsuit is covered in an online article in the Hollywood Reporter (Click HERE).  Viacom claims that when Sorrentino signed on to Jersey Shore, he signed away his rights to all “all ideas, gags, plots, texts…and other material" created on the show, including catchphrases.  Complicating the matter, MPS Production has signed contracts with Reebok for the marketing some of those catchphrases on Reebok apparel.

The Situation isn't new to the world of intellectual property - as strange as that pairing may seem.  MPS apparently is engaged in a legal battle with clothing company Abercrombie & Fitch over its tee shirts that say "The Fitchuation."  

I must admit, I've never seen Jersey Shore.  I've seen clips of drinking and brawling, and a tiny person named Snooky with an accent so thick it seems faked.  I just don't get it.

But of all the things I've seen people fight over in court, "The Fitchuation" may be the most bizarre.

However there is a valuable lesson in all this.

Writers need to take heed.  Those contracts that an author may be so eager to sign are not just pieces of paper.  They contain language that impacts the author's rights.  As in the case with the Jersey Shore contract, it may give away rights in ways that the author simply doesn't perceive.

The small print does make a difference.  Authors need to make sure they understand the consequences of any contract or agreement before signing. Otherwise you might find yourself in the same situation as, well, The Situation.