Thursday, April 26, 2007

Warning: FARK.com now grabbing copyrights

FARK.com just underwent a major site redesign, and lost among the clutter is their new legal policy. **edit** It's been pointed out to me that this policy is actually not new, but has been around since 2005. For more information, see the update edit at the end of the story. One would intuitively think that simply posting a photograph to the forums over at FARK.com would not mean that one is surrendering their copyright to FARK.com for all time, but it would appear that that is no longer the case:



Fark.com is the legal owner of all copyright interests of Fark.com content. Each and every submission to Fark.com carries with it an implied assignment of the entire copyright interest in the submission. In exchange for the content and publication of that submission on Fark.com, Fark.com grants back to the submitter a non-exclusive, non-transferable and royalty-free license to republish that submission in any and all forms.



Essentially, this means that 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. If, for example, you post a photo, they are free to sell rights to your photograph to others or to use it without permission in any way they deem fit, including advertising. The owners of FARK are "generous" enough to grant you back a license to use your own photo as you wish, 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. The owners of FARK now own your image, not you.



**EDIT** Further details and Drew Curtis' response. Looks like this was just a case of poorly written legal copy, and FARK has no malicious intent. (I never really thought they did; the problem is that the law really doesn't care what you meant to do in a contract, it only cares about what's on the face of the contract.)

39 comments:

Jim Davis said...

Bad news from what is otherwise a good site for wasting time on slow days.

McFox said...

Well spotted.

A sneaky move with little regard for the users. Good way to lose your customer base.

Anonymous said...

So that basically means from now on that Photographers, Photoshoppers and just plain funny farkers can, without any consultation or payment, have their works published in any book etc the Fark management decide to release without any payment/acknowledgement?

Anonymous said...

Not to worry..our very souls and being will be transferred via copyright law to THEM eventually.

Now please disfigure yourself before I sue you.

Matthew said...

They've had that for awhile.

Jen said...

I don't think that's new...as far as I know that's always been in the Farq. I remember threads about it a couple of years ago.

muffin said...

FARK.com just underwent a major site redesign, and lost among the clutter is their new legal policy.

It's not a new policy; it's been that way for years now. You'll get over it.

Chris said...

I don't read it that way.

Each and every submission to Fark.com carries with it an implied assignment of the entire copyright interest in the submission. [My emphasis]

If you post a picture in a Fark forum, you're posting a link to it on your own hosting, and thus you never submit the actual photo to them. The transfer of copyright doesn't apply to the photo.

They're taking your text (presumably so they can use the forum archives in perpetuity), but not your photoshop.

James said...

Note that it only applies to the content you post. If you post, for example, a link (such as in an HTML IMG tag), it's the IMG tag and and not what it is pointing to you are assigning to them.

However, since an IMG tag and the URL are not themselves copyrightable -- they are essentially a datum or statement of fact, not a creative expression -- no harm done.

What it mostly affects are comments submitted by posters...

snarfwiggle said...

The redesign SUCKS, btw... looks like an IT guy designed it.

Andy said...

FARK-in hell :)

Anonymous said...

Sounds just as dodgy as deviantart's policy...

t3knomanser said...

Wait- if you post a picture in a FARK thread, you haven't submitted the picture to FARK.

Follow my logic here- Fark doesn't host the photo- it resides on some external server. Fark owns "the submission"- the submission contains a link to the image, not the image itself. Ergo, Fark is not hijacking your copyright.

meunierc said...

Ouch. As McFox said, well spotted. I'm an avid reader of Fark and had every intentions to $upport them ($5 a month is outrageous tho). I'm definitely going to watch out for that one before I give them any encouragement.

Geo said...

Couple of things:

Copyrights are considered property, and probably can't change hands this way; I'm believe it's explicitly prevented by some state laws (Georgia, for one, as I understand it).

US copyright law explicitly prevents assigning exclusive rights this way, which probably also invalidates it (they give you re-publication, but that leaves some other exclusive rights).

http://www.copyright.gov/circs/circ1.html#toc

Also, implicit contracts are shaky in general (see shrink-wrap EULAs for an example). Given that this one is basically horse-theft, I don't see it flying in court.

Anonymous said...

Goodbye, TotalFark.com, you were good to me. I'm pretty sure it would never hold up in court, though. Even if this was an old policy, it wasn't publicized enough to be upheld, but now on ever page, it might, thus my account with TotalFark.com goes bye bye. I'll miss you all. Well, most of you.

ejenkins1979 said...

Of course, IANAL (I am not a lawyer), but my understanding of copyright law tells me that in this case, Fark.com can only claim copyright over the copy you posted on their site. Interestingly enough, if the image is hosted elsewhere (your site for example, which most images are), then you are actually granting license to THEM to reproduce and display the image. Beyond that, copyright law says that the actual copyright belongs to the initial creator and cannot be re-granted without significant additions to the orignal work (see Andy Warhol's Campbells Soup cans).

Have fun by reading up on it here:
http://www.copyright.gov/fls/fl102.html
and here:
http://www.straightdope.com/mailbag/mcopyright2.htm

Frank_ said...

Of course, IANAL (I am not a lawyer)

Why bother with the acronym if you're going to define it?

Anonymous said...

Legal as of Jan 2005:
Terms of Service: Text comments, AudioEdit submissions, and Photoshopped images posted on Fark by registered users may not be reposted or broadcast without the express written permission or license from Fark.com, and must attribute Fark.com as the source. Fark.com is the legal owner of all copyrights in the content on this site.

Legal as of Jan 2006:

Terms of Service: Text comments, AudioEdit submissions, and Photoshopped images posted on Fark by registered users may not be reposted or broadcast without the express written permission or license from Fark.com, and must attribute Fark.com as the source. Fark.com is the legal owner of all copyrights in the content on this site.


So what's changed?

Ryan McGinnis said...

Anonymous said...

Legal as of Jan 2005:
Terms of Service: Text comments, AudioEdit submissions, and Photoshopped images posted on Fark by registered users may not be reposted or broadcast without the express written permission or license from Fark.com, and must attribute Fark.com as the source. Fark.com is the legal owner of all copyrights in the content on this site.

So what's changed?


I am not a lawyer, but on the face of it in plain language, what appears to have changed is that in the original agreement from 2005, FARK claims to be the legal owner of all copyrights of the content on the site. This statement, however, applies only so far as to the content that they actually legally own -- i.e., their content. They cannot claim to own other people's content without first having the rights to that content transferred via some agreement. In the old language, no such agreement existed, and as such, all submitters retained copyright to their works. It's the same principle that you don't legally own the Mexico just because you clearly tell people you legally own Mexico. :) You have to come to some kind of arrangement with the Mexican people first.

In the new language, however, there is an implicit agreement in the Terms of Service that transfers the actual copyright the moment that the image is submitted (i.e., posted) to the site. Now, I don't know whether this transfer is legally tenable or not (again, IANAL), but on the face of it, if it is tenable, then it does just what it says it does -- it transfers your copyright to FARK.

Given the way it was written, I suspect it was whipped up by a lawyer, and as such, it probably isn't too outrageous to think that this agreement could possibly be seen as binding in a court of law.

James said...

You guys haven't actually read the copyright notice have you?

You own it still, you just grant Fark the right to use it without giving you any money. They can't sell it, but they can use it for their own money making schemes, as can you.

Nice work, random blogger. You just got a bunch of hits on your site by spreading a lie. And you could have verified it by emailing the folks at Fark.

Ryan McGinnis said...

James said...

You guys haven't actually read the copyright notice have you?

You own it still, you just grant Fark the right to use it without giving you any money. They can't sell it, but they can use it for their own money making schemes, as can you.

Nice work, random blogger. You just got a bunch of hits on your site by spreading a lie. And you could have verified it by emailing the folks at Fark.


Well, clearly I read it, I posted it. I think the reading comprehension issue lies on your side of the fence. There are ways to create licenses that allow one to use content as one wishes without actually transferring the copyright. The language in the TOS clearly transfers the actual copyright of your image to FARK, meaning that, if the language is binding, you indeed no longer own your image. The only thing that could possibly save a content submitter is if the language were deemed non binding because it violates existing law. (An illegal contract can't be enforce.) Which it might; in which case, FARK actually owns nothing and has no rights, which is likely entirely the kind of position they were trying to avoid in the first place.

BTW I'm not just some random guy, either. My original FARK membership number has 4 digits, several hundred links on the site are mine, and I've probably paid a couple hundred bucks in membership fees over the years. Having watched how the board has been run over the years, I'm guessing this new policy language is more a product of ignorance than malice. FARK doesn't have much of a paid management staff, per se.

Anonymous said...

Again, Ryan, the policy is clearly not new. It's been this way for at least a year or more now.

Brent the Closet Geek said...

Actually that legal's been there for quite sometime. It's a non-exclusive license anyway so I don't get the big deal.

Oh noes, you won't get paid if they put your really funny quote in a book!

Anonymous said...

Has anyone received a cease-and-desist notice from Fark after using one's own work elsewhere?

I'm taking a wild stab in the dark and just going to say "no."

This is typical language every major site has to employ to protect their interests from, say, photoshoppers who want to later claim the site used their work without permission (and yes, it can be argued that submitting/posting is not the same as granting permission).

Further, this language protects *you* from other media outlets who will (and do anyway -- like Ernie's House of Whoop Ass, for instance) use *your* work without attribution or payment. Without this language, there's an extremely low risk to these sites who use your work, because individuals will rarely pursue a claim against them. With this language, however, places like EHWA have to look over their shoulder, because legal dogs might bite them in the ass...

Anonymous said...

I canceled my subscription to TotalFark last night after watching the responses from their resident prick admin, Jeff. To me it looks like they are making room for more ad space while enthusiastically flipping off the user community that brought them the success they now enjoy.

So today I'm learning my way around Digg.com.

Gordon Firemark said...

They can say it, but that doesn't make it so. I AM a lawyer, and in my opinion, there's no such thing as an 'implied' or 'implicit' license of exclusive copyright rights. The mere licensing back of some rights doesn't change the character of what they're trying to do.

they CAN claim a copyright in the compilation of user-generated content, and of course that content generated by their own employees, but that's about it.

Still, I do accept the notion that by posting on a site (whether Fark or otherwise) a user does grant the site a limited right to publish that user-generated content...

But... does this mean the site can RE-Publish the material in another medium, or on a different site? I think not.

Ryan McGinnis said...

Brent the Closet Geek said...

Actually that legal's been there for quite sometime. It's a non-exclusive license anyway so I don't get the big deal.

Oh noes, you won't get paid if they put your really funny quote in a book!


Actually, the non exclusive license is granted to YOU the image's author, not FARK. FARK owns the image EXCLUSIVELY. It's not even a joint copyright type deal, they just flat out own it. It would actually be better (though still horrible) if they granted the author an exclusive license, as that would prevent them from reselling the image to anyone else.

And -- Oh noes! Now I can't properly defend my copyright! :) The problem isn't that FARK owns my witty comments, the problem is that FARK wants to own my photography that I post there in contests. Seeing as I've licensed images for upwards of $2,500 a piece, I can't really afford to give away my intellectual property for the privy of being allowed to see it in a FARK discussion forum.

Anonymous said...

I think the message is clear:

Don't use the site untill they fix this.

I suggest that you contact them by posting a suggestion under the Suggestion heading on their Contact page.

This would be best done by copyright experts and lawyers . So, I guess this is a plea for some help from lawyers with this specialty.

Back to worrying about the privacy implications of allowing DoubleClick to use my info...

Ryan McGinnis said...

Anonymous said...

Has anyone received a cease-and-desist notice from Fark after using one's own work elsewhere?

I haven't, and I'm sure I wouldn't, even under the current terms. You'll notice they grant the author back a license to do whatever they want to do with the image (short of selling rights to it, since, of course, FARK now owns them).

This is typical language every major site has to employ to protect their interests from, say, photoshoppers who want to later claim the site used their work without permission (and yes, it can be argued that submitting/posting is not the same as granting permission).

No, it's really not. Most sites will grant themselves a royalty free forever license for use at the site, and some will grant that for use anywhere, but rarely will a site actually try to wrest the copyright away from the author. That's just highway robbery.

Further, this language protects *you* from other media outlets who will (and do anyway -- like Ernie's House of Whoop Ass, for instance) use *your* work without attribution or payment. Without this language, there's an extremely low risk to these sites who use your work, because individuals will rarely pursue a claim against them. With this language, however, places like EHWA have to look over their shoulder, because legal dogs might bite them in the ass...

No, it doesn't protect ME, since any lawsuit FARK files earns money for FARK, not ME. If someone rips off one of my registered copyright photos (and everything I post online is) and I end up having to hire a lawyer for C&D and for settlement or trial, *I* get paid for the usage. If FARK is going around doing this, FARK is getting the money, not me. This is a rather silly argument to make. If FARK wants to go after people for violating the copyrights and trademarks surrounding their own website, more power to them. They sure as hell don't need to steal my copyright to "protect" me.

Anonymous said...

This blogger may have gotten a few hits from the BS story, but he is still a friggin' moron.

Keep up the good work, doofus...

deadowl said...

There are a lot of legal issues regarding submitted content use, and generally companies will grab copyrights to protect themselves and others from litigation of the submitter. Believe me, I've experienced such a thing so I can understand this. Your host or other people who are supporting you will run scared if you don't have proper legal control over the content on your website in this kind of situation. Total control, however, can also be abused (ex. selling the exclusive IP rights for a lot of money). That is why the language in submission licenses needs to be changed. Other solutions have been pursued such as replacing the total control submission license with creative commons licensing schemes. It might be a good idea to suggest this to any websites with this kind of submission licensing scheme.

Anonymous said...

FARK them

Anonymous said...

Can they copyright the term "hilarity ensues"? Because I'd love it if it was exclusive to that site alone so I don't have to read it elsewhere anymore.

Mr Angry said...

Virtually every site that accepts submitted content has a similar copyright notice. At the more benign end of the spectrum, what they mean is "once you submit something here, you can't sue us for using it in another way or force us to take it down from the site". At the less benign end of the spectrum it could certainly be used to make commercial gain from your work without you seeing any benefit.

But it's a bit of a moot point as 99% of material submitted to Fark using source material that the submitter doesn't own. In a court they'd probably find that they were in breach of copyright when they submitted it.

Anonymous said...

"the problem is that the law really doesn't care what you meant to do in a contract, it only cares about what's on the face of the contract."

Evidently, you are not a lawyer. You have no idea what you're talking about.

Ryan McGinnis said...

True, IANAL, though I did sleep at a Holiday Inn Express last night. However, I do know that when you sign a contract after having read it, you can't later say "but, gee whiz, I THOUGHT the contract meant something else!" and get out of the contract, unless the contract was somehow misleading or unenforceable (i.e., unconscionable), or the person getting you to agree to the contract verbally contradicted the written words.

It doesn't really matter that Drew didn't *mean* for his site to grab copyrights; the language of his agreement meant that he legally way grabbing copyrights. Well, would be, were it not for the fact that apparently such a stipulation is unenforceable, seeing as one is required by law to sign away copyrights only in writing, with signatures, and not implicitly through a website TOS.

{Steve Rapaport} said...

When the inconvenient legal wording is changed, that's when you can relax.

"Sever your leg, sir. It's the greatest day."

Anonymous said...

Looks like Fark updated their copyright policy. Will you be posting an update?