I had a web developer buy several of my photos (download) from my SM site under the commercial license category. I would understand him using them on one website. However, I have discovered the same photos, in a flash slideshow, on three different websites that he developed for businesses.

Would this not be considered "reselling" which is directly prohibited in the license?

Here's the license from SM:

View Commercial License

What you can do: Photographer or videographer ("Content Provider") grants you a perpetual, non-

exclusive, non-transferable, worldwide license to use the accompanying image(s) or video(s)

(collectively, "Media,") for permitted commercial purposes, defined as:

advertising, promotion, brochures, packaging
as part of a commercial website for promotional purposes (maximum 800x600 pixels) use
prints, posters, flyers, tearsheets for promotional purposes (not for resale)
prints, posters, or other commercial display of Media
magazines, books, newspapers, other printed publications
video, broadcast, theatrical

What you may not do: Buyer may not resell, relicense, redistribute without express written permission

from Content Provider. Use as a derivative work, and reselling or redistributing such derivative work is

prohibited. Media may not be used in a pornographic, obscene, illegal, immoral, libelous or

defamatory manner. Media may not be incorporated into trademarks, logos, or service marks. Media

may not be made available for download.

Content Provider retains all rights, license, copyright, title and ownership of the Media.

There is no warranty, express or implied, with the purchase of this digital image or video file. Neither

Content Provider nor SmugMug will be liable for any claims, or incidental, consequential or other

damages arising out of this license or buyer\'s use of the Media.

I would go talk to a legal expert, that's not something that we can interpret for you

Thanks Canton.

The rest of the DGrin community might weigh in, some of them might have some advice for you. We moved your thread to the business forums so that they can take a look.

I would say he redistributed not resold. That is my opinion on what you have posted. I'm not an attorney so all I can give is an opinion. if it was me, I'd start by writing the person a friendly email/letter/contact us form reminding the person that redistribution is not allowed under my site agreement and suggest a reasonable fee to continue using the photos. Then if that didn't work, I'd contact an attorney. Then again, I might also just skip the email/letter/contact altogether and contact an attorney first so the attorney can deal with the hassles instead of me :-) .

The wording leaves a grey area. I don't think the web developer violated the terms of the license...it's not worded to prevent him from using the image several times "as part of a commercial website for promotional purposes". The language was written as if the buyer is the end user. Your guy is not the end user, yet I would not say he is re-selling the image.

If you want to limit the use of down loading images to one website only, I think you need to be VERY specific. I would interpret this in favor of the web developer.

Sam

Originally Posted by Art Morgan The wording leaves a grey area. I don't think the web developer violated the terms of the license...it's not worded to prevent him from using the image several times "as part of a commercial website for promotional purposes". The language was written as if the buyer is the end user. Your guy is not the end user, yet I would not say he is re-selling the image.

While I agree that the image was not resold, I disagree that the photo can be used on more than one website because the term "website" is singular and not "websites" which is plural. A little s can make such a big difference.

Originally Posted by Sam If you want to limit the use of down loading images to one website only, I think you need to be VERY specific. I would interpret this in favor of the web developer. Sam

If the photo is on more than one page under a single domain, then I would agree. If it is under multiple domain names, I have to disagree. Since the contract wording excludes re-disbursement but does allow for commerical use on a single website, IMO it comes down to the definition of whether the developer used it on a single site or not. That is so subjective it is something for an attorney to review.

How did this turn out?

Sorry, if you're going to license with the general terms of an RF license, a developer is perfectly free to use it on a thousand websites under different domains, if they like. You granted them a "perpetual, non-exclusive, non-transferable, worldwide license to use the accompanying image(s) or video(s) (collectively, "Media,") for permitted commercial purposes". Note the "s" after purposes. Any number of purpose(s).

Perpetual means they have unlimited use of the content. They aren't redistributing it any more than putting it on one site is redistributing it. Redistribution would be like putting it on a cd and handing it to their friends. Or including it in a template.

It certainly doesn't mean "reselling" as the OP thinks. Does the OP imagine the only people that might license their image develop and host their own site? Of course not. Web developers license images to develop websites.

In the daily running of their commercial business, they are using the content as they need to develop websites. The license doesn't say "a single website".

Originally Posted by Sam If you want to limit the use of down loading images to one website only, I think you need to be VERY specific. I would interpret this in favor of the web developer. Sam

hang on but how to you customise the smug mug commerical license to put in your own specifics?

I think it's a violation of the sales terms. As far as I understand, the contract allows one entity unlimited use. The word and spirit of the contract prohibits that one entity from abusing its "unlimited use" to empower other entities with use of the image. There's not really much of a difference between selling a company a CD with the image and uploading it on to their web site.

This, of course, assumes that the websites are independently run. If the developer runs all the websites himself, he may have a right to use the photo.

Taaaaalking with a lawyer would be your best bet though. You wouldn't trust uncle Bob to shoot your wedding. I wouldn't trust him for legal advice :p

Originally Posted by orljustin Sorry, if you're going to license with the general terms of an RF license, a developer is perfectly free to use it on a thousand websites under different domains, if they like. You granted them a "perpetual, non-exclusive, non-transferable, worldwide license to use the accompanying image(s) or video(s) (collectively, "Media,") for permitted commercial purposes". Note the "s" after purposes. Any number of purpose(s). Perpetual means they have unlimited use of the content. They aren't redistributing it any more than putting it on one site is redistributing it. Redistribution would be like putting it on a cd and handing it to their friends. Or including it in a template. It certainly doesn't mean "reselling" as the OP thinks. Does the OP imagine the only people that might license their image develop and host their own site? Of course not. Web developers license images to develop websites. In the daily running of their commercial business, they are using the content as they need to develop websites. The license doesn't say "a single website".

Uhhh as I read it the license does indicate a single website. The license doesn't stop at the generic word purposes. It goes on to actually define the allowed purposes -- and one of those purposes is as part of a commercial website for promotional purposes (maximum 800x600 pixels) use

Call your attorney...

Originally Posted by Demian I think it's a violation of the sales terms. As far as I understand, the contract allows one entity unlimited use. The word and spirit of the contract prohibits that one entity from abusing its "unlimited use" to empower other entities with use of the image. There's not really much of a difference between selling a company a CD with the image and uploading it on to their web site. This, of course, assumes that the websites are independently run. If the developer runs all the websites himself, he may have a right to use the photo. Taaaaalking with a lawyer would be your best bet though. You wouldn't trust uncle Bob to shoot your wedding. I wouldn't trust him for legal advice :p

Great advice and LOL funny too.

Originally Posted by Demian I think it's a violation of the sales terms. As far as I understand, the contract allows one entity unlimited use. The word and spirit of the contract prohibits that one entity from abusing its "unlimited use" to empower other entities with use of the image.

That's silly. The whole point of a developer or designer buying stock is to use it in projects. Just like he can do an ad campaign for Coke with an image and then another next week for Nike with the same image, he can do a website for one party, and another for another. If you don't like that, don't sell RF.

Sounds like the OP wants to sell Rights Managed.

The license doesn't stop at the generic word purposes. It goes on to actually define the allowed purposes

I read it as examples of allowed purposes.

Q:What can I do with this?
A:Oh, you can put it in a brochure, on a website, in an ad, pretty much anywhere you need an image.

The license may perceive that to be the case (being able to use the images on several sites), but to me that is the work of a true amateur considering the web designer.

The concept of branding for sites, commercials, etc is to give a unique experience to the visitor. Reuse of the same photos for several sites basically lacks creativity and if I were one of the other companies where they used them and found out about it, I wouldn't be happy.

Same with the example of using an image for a Coke ad and then a week later for a Nike ad. Those are the big leagues. If they found out about that, they would be pretty darn upset at the designer / ad company regardless of the rights or specifications of the image licensing.

So regardless if the wording on the license means this or that, a well thought out note to the other site owners pointing out the duplication of images on their sites might get those taken down.

...ya never know... maybe worth a shot. lol

The more times I read this, the more I think I'm wrong.

To me, it seems that the contract doesn't intend for the image to be provided to multiple businesses like that. But it isn't very explicit either... I think a vague contract is gonna be resolved in favor of the buyer.

Probably best to write your own license if you want to control the use :(

Originally Posted by jww The license may perceive that to be the case (being able to use the images on several sites), but to me that is the work of a true amateur considering the web designer. The concept of branding for sites, commercials, etc is to give a unique experience to the visitor. Reuse of the same photos for several sites basically lacks creativity and if I were one of the other companies where they used them and found out about it, I wouldn't be happy. Same with the example of using an image for a Coke ad and then a week later for a Nike ad. Those are the big leagues. If they found out about that, they would be pretty darn upset at the designer / ad company regardless of the rights or specifications of the image licensing. So regardless if the wording on the license means this or that, a well thought out note to the other site owners pointing out the duplication of images on their sites might get those taken down. ...ya never know... maybe worth a shot. lol

Please, the Nike/Coke thing was obviously hypothetical.

It isn't your job to judge (or base the rules on) the effectiveness of a marketing campaign. You are supplying content under a typical RF license.

Originally Posted by orljustin Please, the Nike/Coke thing was obviously hypothetical. It isn't your job to judge (or base the rules on) the effectiveness of a marketing campaign. You are supplying content under a typical RF license.

Nope... I didn't supply the content at all. All I was saying was my opinion only and one of a professional web designer is that reusing said images on several sites is lame.

I just offered another perspective. lol :p

Originally Posted by orljustin I read it as examples of allowed purposes. Q:What can I do with this? A:Oh, you can put it in a brochure, on a website, in an ad, pretty much anywhere you need an image.

By correct definition of the words used, it is not "examples of allowed purposes." If it only said as after the word purposes and comma, then perhaps. However, because the word defined is the action after the pause the action is

1. to state or set forth the meaning of (a word, phrase, etc.): They disagreed on how to define “liberal.”

2. to explain or identify the nature or essential qualities of; describe: to define judicial functions.

3. to fix or lay down definitely; specify distinctly: to define one's responsibilities.

4. to determine or fix the boundaries or extent of: to define property with stakes.

5. to make clear the outline or form of: The roof was boldly defined against the sky.

[reference: dictionary.com]

then the meaning is clear, definite and distinct. I just couldn't resist throwing in those synonyms of defined .

Again, if the developer wants to argue that the use is permitted, then by all means that is the developers prerogative. That's why we still have our legal system to refer to.