Image copyright issues

[estaquieto]

Hi, I'm setting up a small electronic postcard service on my site, but I intend to invite other people to contribute their works for use in the postcards. I wonder if there should be some kind of agreement between me and the contributors regarding ownership. Should I insist that whatever images they give to me, they become my property? I feel that it should be this way so I could still have control over how these images will appear (e.g. as thumbnails or full size images). However, say an image does not belong to some schmuck but to someone else who has no idea, will I be ultimately responsible for this breach? Lastly, should there be a contract, will it be in digital format or written format? Thank you!

[Longhaired Genius]

If you go to this page you can read the BBC's terms for user submitted pictures:

[news.bbc.co.uk...]

Personally, I would not submit a picture under these terms but many people do.

If you published in good faith a misattributed picture, I expect you would be in the clear if you took it down when notified, but I am not a lawyer.

[mgream]

You should seek professionally qualified advice on these matters, but I can offer some perspective as a student in the area (disclaimer: use at your own risk).

You should probably have an agreement that comes into effect when they perform the upload (the "click" on the upload signifies that they agree to the terms and conditions of the agreement, so this has effect as a contract in contract law [under my native english law, various conditions must be met for a contract to be valid]).

The agreement should probably just state that owner retains all rights in the material, but by uploading them they are licensing them for use as part of your postcard "mechanism" including alterations and transformations necessary to achieve results of the postcard "mechanism". It could probably also state that they warrant that they have the capacity to offer the material for use, etc (this indemnifies you as you have taken appropriate measures to ensure that material uploaded is legitimate). This could probably just be plain language, not lawyer speak :-). This could even be as simple as a sentence or paragraph ("by uploading this image, you agree that you have the capacity to do so, and you agree to allow the image to be used within in the postcard display program, and we agree not to use the image for any other purpose", etc).

Unless you state so in the agreement, you can't really use the material for any other purpose without their consent, as this would be a violation of the agreement. It would be wrong or unfair to state in the agreement that they license the material to you for unlimited purposes, because anyone reading the fine print just wouldn't upload any material with such a bad licensing agreement.

If the material infringes, then you have safe harbour under DMCA until you are notified (this is a general principle in copyright law that you are not liable for secondary infringement when you don't know about it) with a take down notice for which you can decide whether to comply or not (i.e. by removing the offending material). The fact that you have set up an agreement for the upload whereby the original uploader warrants that they have capacity to license the material for use will let you off the hook.

Matthew.