Selling Your Photography Online? Read the ‘Terms and Conditions’

Image source: http://bit.ly/mxUFch

On April 27, 2011 at 6:05 am I received a message from a Flickr member under the user name “go.Paparazzo.com” with no real name given. The message was brief and is detailed here:

Subject: The new Paparazzi Pictures Auction – goPaparazzo.com

Content: Hello there! If you would like to sell a few of your celebrity pictures, take a look at the worldwide first online paparazzi photos auction platform –www.gopaparazzo.com

Best regards, Your goPaparazzo.com

I thought this message was interesting because I have never pursued selling my photography over the Internet before, and with a small collection of celebrity photographs this message caught my interest. As a full time student I have been too busy with school and other matters to give much thought to selling my work and always imagined it would be something I would look into further when, for example, approached by someone interested, or after I graduated when I would have more time to establish my photography business.

So, interested in the message I followed the link to gopaparazzo.com & of course began to read their Terms and Conditions.

Because I read legal conditions in an awkward kind-of way, the first section I noticed was the Choice of Law / Jurisdiction / Attorney’s Fee clause, where it states:

• You agree that: (i) the goPaparazzo.com Website shall be deemed solely based in Switzerland; (and);
• Any claim or dispute between you and goPaparazzo.com that arises in whole or in part from your use of the goPaparazzo.com Website shall be decided exclusively by a court of competent jurisdiction located in Switzerland.

Then I noticed the Seller’s Rresponsibility (yes, spelt incorrectly with two ‘r’’s) / Conditions for Submission of Media clause, where it states:

• During the sales process you retain copyrights or other intellectual and property rights applicable to any media and information you submit to goPaparazzo.com. After the successful sale of your image your property rights are transferred to the buyer, who becomes the new owner of the image. (and);
• (7) You agree and undertake that you will not submit any Media that is already published in any online or print Media, or was published in any online or print Media in the past. (and);
• You warrant and undertake that, once your image is sold and the respective payment transferred to gopaparazzo.com’s account, you will delete this image from all media you control.

Now, I’m not sure about you – because, I have no idea of telling who you are – but after reading this, I would never sell any of my photography on this website. Not only will you be subjected to the judiciary system of a foreign state, but you are also required  – upon sale of your photograph(s) – to delete the image(s) from any and all of your records as you have sold not only the tangible product (the photograph), but also your intellectual copyright to the photo(s).

That having been said, I have also taken interest in another website mentioned to me by my friend, I’ll call him Chris, who probably commits copyright infringement himself – but I won’t discuss that here. Right Chris?

Anyway, the website I’m talking about is Etsy.com, an e-commerce website focused on handmade or vintage items as well as art and craft supplies. These items cover a wide range including Indie Art, photography, clothing, jewelry, edibles, bath & beauty products, quilts, knick-knacks and toys. –Wikipedia (Finally I can cite Wikipedia for non-academic work).

Again, I examined this websites Term’s and Conditions.

Unlike the Swiss jerks over at goPaparazzo.com, the Etsy people seem a lot more… attentive to creative works and their affiliated copyrights.

In article 263 of their ‘help’ domain, the title of the article is written as, “What should I know about copyright and protecting my work?”

Among other useful tips such as how to register your copyright protection at the U.S. Copyright website, the differences between copyright, patent and trademark and the umbrella term ‘intellectual property’, the article also details the following topic, appropriately labeled: When I sell an item, what happens to my copyright?

According to Etsy, transaction(s) of your photography through their website is as follows:

• When you sell or give away a copyrighted item, unless you have a contract specifying a transfer of one or more of your copyright rights, you are only selling the physical item, not any of your rights. For example, when I sell a necklace, I am only selling the piece of jewelry. The buyer is not entitled to the exclusive right to duplicate the necklace without my express permission.
• However, pursuant to the first sale doctrine, the buyer of a lawfully made item may re-sell that item or otherwise dispose of the possession of that copy without the express permission of the copyright holder. For example, when an individual buys a necklace from me, that person may re-sell that necklace without getting my permission.

Having read this clause along with the remaining terms and conditions, it’s my opinion that the Etsy people appear to have your best interest in mind, seller or buyer, and if nothing else at least appear customer service oriented (through their many useful articles) and proficient in English grammar.

In consideration of the aforementioned, I have just finished exploring Flickr’s Community Guidelines wherein it is stated under the phrase ‘what not to do’:

• Don’t use Flickr to sell.
• If we find you engaging in commercial activity, we will warn you or delete your account. Some examples include selling products, services, or yourself through your photostream or in a group, using your account solely as a product catalog, or linking to commercial sites in your photostream. If you engage in commercial activity elsewhere on the internets or in the real world, you’re still welcome on Flickr—in fact, we’ve even set up some best practices especially for you.

Although this clause explicitly states a user may not link to commercial sites in their respective photostram, it does not explicitly state that you cannot solicit commercial sites through private email messages, such as the one I have received. I will however be contacting Flickr after this post in an attempt to seek a clearer answer.

Conclusively, stay away from the Swiss paparazzi nazi’s at goPaparazzo.com, and instead invite yourself to the (apparently) wonderful e-art community at Etsy.com.

As always, please leave comments, complaints, criticisms, critiques and so-forth on my articles; I do read them!