Thursday, May 03, 2007's new old copyright policy has revised their legal verbage in their TOS regarding copyright. In a previous post, I pointed out that's copyright policy, as originally worded in their TOS, actually attempted to transfer the copyright of all submitted content to FARK, with FARK then granting you, the author, back permission to use your content however you like, short of selling it, since of course they would own it. Others pointed out that, in reality, FARK's wording violated copyright laws and was thus invalid and nonbinding. (I am not a lawyer, so I can't verify this.)

An excerpt from the new copyright policy over at FARK states (emphasis mine): permits the submission of text, photographs, opinions, comments and/or other forms of communication submitted by you and other users ("Submissions") and the hosting, sharing and publication of such Submissions. You agree that you are solely responsible for your own Submissions and affirm, represent, and/or warrant that you own or have the necessary licenses, rights, consents, and permissions to use and authorize to use all patent trademark, trade secret, copyright or other proprietary rights in and to any and all Submissions to enable inclusion and use of the Submissions in the manner contemplated by You retain all ownership rights in your Submissions. However, by submitting the Submissions to, you hereby grant a non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Submissions in connection with and's business, including without limitation for promoting and redistributing part or all of (and derivative works thereof) in any media formats and through any media channels/outlets

If the legal wording that this replaced were actually legally binding, this would have been an improvement. However, it is important for a sumbitter of content to understand what FARK is claiming for themselves here. First off, the royalty free license they grant themselves in the current language means that anything that you submit to can be used by FARK all they want, not just on their site, but also in advertisements online, in print, on television, on banners wrapped around the Empire State Building -- basically, any way that they want. This extends far beyond what is required to protect FARK from lawsuits stemming from someone posting their content on the website. As it stands now, if someone at FARK decides to write a FARK book, the owners of FARK (Drew, presumbly) is/are claiming that they can put, say, that photoshopped image you submitted to FARK in it to their heart's content and not give you a dime. This may seem trivial, but typical licensing for this type of usage is at least hundreds of dollars per image. Or, say, if you entered into the weekly photo contest and submitted an incredible image, FARK could use that image in advertisements all over the net or in magazines or on television. (Admittedly, FARK doesn't do much advertising; it's cool enough that the people who would like it just end up eventually finding it.) This kind of useage could run into the thousands of dollars, normally. Now, there are lots of folks out there who would kindly donate for free their content to help FARK advertise (I'm not one of them) -- that's not the problem. The problem is that FARK takes this right without asking you about it. And these rights serve no purpose other than to line FARK's pocket -- there is no legal protection derived by allowing them to put your photo or photoshop image on coffee mugs and t-shirts and SpikeTV. All FARK really needs legal permission is to display your content on their website.

The second issue revolves around FARK's declared freedom to sublicense or transfer the license they just made you give them. This is, in effect, a copyright grab. As I read it (and again, I am not a lawyer), FARK is saying that they are allowed to re-sell or give away your content to anyone they want to to be used for any purpose under the sun without asking your or paying you a dime. So, say, you take a kick-ass photograph and submit it to the weekly farktography contest. FARK is claiming the right to sell the unlimited rights to that photograph to advertisers or to give it away altogether. Any profits made on the content goes into FARK's bank account, not yours. Again, the license is "Royalty Free", meaning that once the license is transferred, it can be used for anything at all as much as is desired. You are, of course, free to license and sell the content yourself, but FARK retains the right to do it, too (in what would be, in effect, competition with you.) I don't know why they feel they would need these kinds of rights; I'd be glad to hear it. Anoyher difficulty is that by granting FARK a transferrable, sublicensable Royalty Free license to your content, you can never again sell that content as Rights Managed again. That will sound like Greek to a lot of readers, but it's actually a pretty big deal if you are someone who sells licenses to your content. The bulk of high quality photography, for example, is sold as rights managed and nets a great deal more money more per sale (and is more likely to be desired in a major advertisement campaign) than it would as a RF image. Again, this probably doesn't impact a great number of people, but those who this does impact will know right away what a problem this poses and will probably refrain from posting anything half-marketable to FARK.

Now, I'll be honest: I've read FARK for years and I trust Drew Curtis isn't trying to start a stock photography/smart-assed comments agency from all the content submitted to FARK. FARK's yet to try to do anything nefarious, and I doubt that under current management, they ever would. The problem with legalities like this is that by reserving the rights to do these kinds of things, FARK is both leaving the door open for future abuses and is raising the question as to why they feel they need these kinds of grabby rights to begin with. FARK may feel limited in explaining these things, since attempting to explain a contract sometimes has the effect of negating it, but ultimately I'm left kinda puzzled. Granted, Drew may just be handing this stuff to a lawyer and and not effectively communicating to the lawyer that he actually gives a crap about the rights of the content submitter (most lawyers, I think, assume by default that you don't), I don't know. But the current revision, while being a step forward (in that it isn't actually illegal under federal copyright law), still isn't a very palatable prospect for a content submitter. If this language were attached to, say, a photography contest, I would steer well clear of it. Having seen how FARK works, I trust Drew a bit more than some random national photography contest, but I still can't see myself feeling safe submitting content (mainly in the form of photographs to their Farktography contests and Photoshopped images to their photoshop contests) to FARK under these current conditions.

1 comment:

Anonymous said...

Interesting. Thanks for the update.