Warning: new FARK copyright policy steals your copyright

[chakalakasp]

This is just a heads up, but as per FARK’s new legal policy, posting any of your content to FARK, be it photograph, text, or whatever, immediately and forever transfers your copyright ownership to the owners of FARK.com. For FARKtography contests, this means that if you participate in a FARKtography thread (or post your photos to any other thread) they now own your photograph. They are free to sell rights to your photograph to others or to use it without permission in any way they deem fit. The owners of FARK are “generous” enough to grant you back a license to use your own photo as you see fit, but you are forever barred from selling licenses on the photo, as you (A) no longer own the copyright, (B) have only been granted a non-transferable license, and (C) FARK has generated a Royalty Free license, meaning that the image can never be Rights Managed again.

Essentially, FARK is now stealing your content from you. Looks like I probably won’t be posting to any more farktography contests. I suspect the creators of FARK are just trying to cover their collective legal asses, but seeing as I’ve licensed images for upwards of $2500 a piece, I can’t afford to give FARK my copyrights just for the privilege of seeing them in a FARKtography contest, even if FARK has no intention of using them nefariously.

And before anyone defends this, yes, this is considered highly despicable by the professional photography community. There has been a recent rash of photography contests performing copyright grabs on submitted images — it really pains me to see a good site like FARK adopting this policy.

[Analogy]

Ouch, I’m glad you noticed that. I will not be submitting any further photos under these rules either.

[millera9]

Holy fucking hell! Good catch chaka, and thanks for posting it. I’m gonna have to think long and hard about this one. I fully understand why you would no longer participate given what that says about your ability to market your images for sale.

/Argh.

Edit: One bit of recourse that we have is the ability to post a very small version of the photo to the thread (like a thumbnail). That way, while Fark has the license to the photo, they have no ability to ever really use it and since the license is granted back to the photographer, we can still do whatever we want with the full size version. It’s not like they can demand that we send the original size version to them. They also probably couldn’t sue because the legal policy says that they own whatever is posted to the site. If I post a 100×100 thumbnail and a link, they can do whatever they want with it!

[Analogy]

I’m no copyright expert, but I believe that for copyright purposes a 100×100 thumbnail is the same work as the original size photo as long as it’s fairly obvious that they’re both the same picture. Remember that the RIAA is suing people over MP3s that don’t have nearly the quality of the original CDs they were ripped from.

It’s probably a legal grey area if you only post a link to the photo and not the photo itself. I don’t think any judge would actually decide that a link is the same thing as posting the actual picture, if it even comes to that. Remember for it to come before a judge would mean that either you or Fark.com were suing the other, and think of the public relations disaster that would be for them.

[Elsinore]

Um, this isn’t new, actually. This was posted on the site before the redesign, and it was mentioned somewhere here on the forums because there was concern over it before. If I recall correctly, schnee emailed Drew directly to clarify the position and Drew said it was on there to cover them so they could distribute on the web and also stem the possibility of other sites grabbing stuff posted on Fark. He also said he had no intention of ever claiming ownership of photographs (and photoshops too, as I recall) that other people created.

Now, the wording is problematic, and I would prefer that it be written as I’ve seen other places do it–you grant Fark the license by posting, not that you grant Fark the copyright. I have wanted to suggest as much to Drew.

Regardless, this is not new.

[chakalakasp]

Wow — it’s pretty new to me! Hope it hasn’t been around for very long. Essentially, it doesn’t matter if Drew or anyone would never “claim ownership” — he doesn’t have to, as the legal page ALREADY claims ownership by default. This can interfere with more than just a spat between FARK and a photographer. If, for example, someone else steals a photo of mine that I’ve registered copyright, and I then sue that somebody, that somebody can now point to me posting that photo on FARK and claim that I’ve already given away the copyright and thus don’t have the right to sue — only FARK does. And they would be right.

[Analogy]

That is a very good point. Even if in practice Fark.com LLC isn’t going to be evil with this, there’s nothing keeping someone else from exploiting the fact that legally we’ve given up our copyright to the image. And if in practice Fark isn’t going to enforce the copyrights they now legally own, well, so much better for people who would steal our work.

I agree with Elsinore, changing the legalese to read that we give Fark a *license* to use our posted content the way they wish would be a lot better than completely handing over our copyright. I’d love to know who the brilliant legal mind that came up with this is.

[staplermofo]

Have some faith people!

Here’s the exchange Drew and I had about it, straight from my email for extra ugly formatting:

Drew Curtis
to me, legal

5/19/06

no it doesn’t. We do request non-exclusive reprint rights, but ownership
does not transfer to us. Feel free to spread the word

On Fri, 19 May 2006, Stapler Mo Fo wrote:

> Date: Fri, 19 May 2006 12:00:01 -0400 (EDT)
> From: Stapler Mo Fo
> To: drew@fark.com, legal@fark.com
> Subject: FARK : Legal Question from Stapler Mo Fo (127.0.0.1)
>
> The following was submitted:
>
> Login : staplermofo (172817) [TotalFark]
> Name : Stapler Mo Fo
> Type : (legal) Legal question
>

---

>
> Hi, it came up in the last farktography thread and it’s the subject of a little debate now and I think I just got elected to ask: when a picture is uploaded to fark, does it then become the property of fark LLC? In other words, is this an issue for those incredibly talented folks who plan on (or already are) selling the pictures they submit?
>
> Thanks and sorry to bother you with this.
>

[schnee]

‘mofo‘s answer from drew (note, date 2006) is essentially the same answer I got from him last year as well.

[Elsinore]

chakalakasp: As you can see, it dates back at least to 2006, but I’m pretty sure it was like that long before then. I think with the site redesign, people are just noticing things they might have glossed over before because everything’s so different.

I would strongly suggest you email Drew and explain the problem of copyright transfer as stated on the site and how it could interfere with re-licensing and fighting theft of photos. With you having licensing experience and understanding copyright as you do, you would probably explain it better than most, and your point about challenging copyright infringement is an important one he probably doesn’t realize/understand.

[Diggin]

The terms are simple and regardless of the e-mail above from Drew it clearly paints a picture thats just wrong. It’s a contract! Once you submit the photo to Fark, it becomes the owner of the photo but the ‘submitter’ gets a non-exclusive, and the key words here, “royalty free” rights to redistribute the photo. So, if National Geographic wanted to buy it then you’d get nothing and Fark would get it all. It’s clearly about money.

[Elsinore]

FWIW, it looks like the subject was also brought up in the PSAE forum, so others are just noticing it too. In the PS’ers case, they’re combining a bunch of images that they (usually) don’t hold any copyright over anyway, so the idea that they’re transferring copyright they don’t have to Fark doesn’t really work. In our case, we must be the copyright holder, so it definitely could affect us in the right circumstances. Again, I think this can be solved with some reasonable emails.

For counterpoint, however, we currently have Farktography and the FSM which both gather our photos from Farktography threads. That’s done with Drew’s permission, yet it’s also reposting all our photos. I don’t think any of us has a problem with that, but that also dovetails into the copyright/licensing/reprint issues. Food for thought….

[chakalakasp]

I don’t mind the Farktography site and FSM gathering photos for editorial use. I guess if someone wanted to be a butt they could demand that their stuff stop being used in that manner, but I can’t imagine anyone being that dumb. 🙂 There are quite a few technical copyright violations out there that are only worth turning a blind eye to, either because the infringer has no money, or because the infringement actually kinda works like an advertisement. The copyright grab at FARK, however, is something entirely different, as it assigns FARK the new owner of the content.

I’m pretty sure the whole point of the copyright grab was NOT to do anything nefarious with our content, but rather to protect FARK from lawsuits and to give them more ammo when litigating against people ripping FARK off. I’ve had a few legal types contact me and suggest that, in all likelihood, FARK’s copyright language would not hold up in court. So Drew has a double reason to change it — his current legal language is not only extremely bad for content submitters, it’s also probably illegal and nonbinding — and thus leaves his site unprotected from the kinds of litigation he is trying to avoid.

[Elsinore]

Well technically, my understanding is that if you “turn a blind eye” to any copyright infringement, then you lose the right to pursue other instances of it. So says Disney at least 😉 Regardless, the FSM and Farktography.net don’t bother me either, but it’s another piece to the copyright issue. Anyway, I’ve emailed Drew a head’s up that this is an issue for Farktographers and PS’ers. I’d encourage you to do the same as well. I think if he understands the issues fully, he’s likely to work with us to come up with something that works for both Fark and contest folks.

[Elsinore]

Just as a bit of an update, Drew is taking this issue seriously, and is looking into the wording of the copyright notice and how to modify things.

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