Internet forums and copyright?

ChrisFL · April 4, 2012

So, I was a member of an orchid forum, Orchids Interactive. It was started by a small group of people and we built the content up from nothing. One of the core parts of the forum were photographs of orchid species. The original owners, whom most of the members were friends with, made no pretense about copyright: we, the users, retained the copyright to all our images and content. There is nothing in the user agreement about public domain, etc... The site was totally self maintained by members' monetary contributions, no advertising. The owners, due to life circumstances, had to sell it to a new owner, an outsider who had never so much as visited the forum.

The new owner immediately proceeded to monetize the site with advertisements, much to the objection of all the members. Myself and another member decided that we had said "no, we don't want you making money off of our content" clearly enough, and I still had administrator privileges, and the other member asked me to delete his content/images. I also began deleting mine. The new owner of the site didn't like that, called it abuse of my privileges, and immediately banned me to prevent me from doing anything else. I am banned so I cannot remove my content anymore. Here is the email I am thinking about sending:

You absolutely may NOT restore my content to Orchids Interactive. I retain copyright ownership and I will pursue legal action if I find that this has occurred and that the remainder of my content has not been removed from the site. I will also contact AdChoice and let them know they are advertising on a forum with illegal content.

Do I have a leg to stand on?

angevin1 · April 4, 2012

Is your Content presently up? My first inclination is to suggest you do nothing. If your content is up, I'd suggest a kinder approach. Have someone else write it if you must, but always better to toss sugar versus salt. I understand you're angry, but really nothing was done to you. The Original Owner sold the property. The New owner feels different about moneitzing the site.

Also see below from terms of Service:

"OrchidsInteractive does not claim ownership of your Content posted. However, you hereby grant OrchidsInteractive an irrevocable, royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to use, reproduce, modify, publish, edit, translate, distribute, perform, and display such Content alone or as part of other works in any form, media, or technology whether now known or hereafter developed. No compensation will be paid with respect to the use of this Content."

Art Scott · April 4, 2012

Really need to take this to an attorney.... this one may be of help .... http://www.photoattorney.com or
http://www.krages.com/phoright.htm

Good Luck...

Art Scott · April 4, 2012

angevin1 wrote: »

Is your Content presently up? My first inclination is to suggest you do nothing. If your content is up, I'd suggest a kinder approach. Have someone else write it if you must, but always better to toss sugar versus salt. I understand you're angry, but really nothing was done to you. The Original Owner sold the property. The New owner feels different about moneitzing the site.

Also see below from terms of Service:

"OrchidsInteractive does not claim ownership of your Content posted. However, you hereby grant OrchidsInteractive an irrevocable, royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to use, reproduce, modify, publish, edit, translate, distribute, perform, and display such Content alone or as part of other works in any form, media, or technology whether now known or hereafter developed. No compensation will be paid with respect to the use of this Content."

Was this in the original TS and did the OP have to sign a new TS ... If the new owner changed the TS and did not make all the members sign or agree to it...it probably won't hold water if anyone has a copy of the original TS...

Unfortunately most people will not take the time to print the TS of the forums they are members of....

ChrisFL · April 4, 2012

angevin1 wrote: »

Is your Content presently up? My first inclination is to suggest you do nothing. If your content is up, I'd suggest a kinder approach. Have someone else write it if you must, but always better to toss sugar versus salt. I understand you're angry, but really nothing was done to you. The Original Owner sold the property. The New owner feels different about moneitzing the site.

Also see below from terms of Service:

"OrchidsInteractive does not claim ownership of your Content posted. However, you hereby grant OrchidsInteractive an irrevocable, royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to use, reproduce, modify, publish, edit, translate, distribute, perform, and display such Content alone or as part of other works in any form, media, or technology whether now known or hereafter developed. No compensation will be paid with respect to the use of this Content."

Hi Tom, thanks for your response. My content is currently up. I have posted/uploaded many photos over the last few years.

May I ask for a link for where you found the terms of service? Unless this is some boilerplate bulletin Terms of Service, it definitely was not written/set forth by the original founders, under which my content was uploaded.

Additionally, no, the members did not sign a new user agreement after the ownership transfer, and I have not uploaded any images or content since that transfer.

angevin1 · April 4, 2012

ChrisFL wrote: »

Hi Tom, thanks for your response. My content is currently up. I have posted/uploaded many photos over the last few years.

May I ask for a link for where you found the terms of service? Unless this is some boilerplate bulletin Terms of Service, it definitely was not written/set forth by the original founders, under which my content was uploaded.

Additionally, no, the members did not sign a new user agreement after the ownership transfer, and I have not uploaded any images or content since that transfer.

Yeah man: http://www.orchidsinteractive.com/terms.php

ChrisFL · April 5, 2012

angevin1 wrote: »

Is your Content presently up? My first inclination is to suggest you do nothing. If your content is up, I'd suggest a kinder approach. Have someone else write it if you must, but always better to toss sugar versus salt. I understand you're angry, but really nothing was done to you. The Original Owner sold the property. The New owner feels different about moneitzing the site.

Also see below from terms of Service:

"OrchidsInteractive does not claim ownership of your Content posted. However, you hereby grant OrchidsInteractive an irrevocable, royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to use, reproduce, modify, publish, edit, translate, distribute, perform, and display such Content alone or as part of other works in any form, media, or technology whether now known or hereafter developed. No compensation will be paid with respect to the use of this Content."

So I did some research on webarchive, turns out these terms were added without the members knowledge when the site came under new ownership. They were my intellectual property with no license given to orchids interactive. The new owner added those terms quietly and didn't tell anyone.

ChrisFL · April 5, 2012

http://web.archive.org/web/20110423170040/http://orchidsinteractive.com/

Dan7312 · April 5, 2012

Just to be the devils advocate here... The terms now on the site are sort of like the terms on a lot of sites that display images people upload. Just because someone uploads an image to a server doesn't give the owner of that server the right to display it... that's why most sites displaying images have terms that give the site pretty broad rights to the images that are uploaded, including the right to change the terms.

So it looks like a he said/she said kinda' thing if the previous site had no published terms. People uploaded images knowing that they would be displayed, now some don't want them displayed. So it seems like there was some kind of implicit agreement. But it's hard to say what was agreed to in that case because no one wrote anything down.

ChrisFL wrote: »

So I did some research on webarchive, turns out these terms were added without the members knowledge when the site came under new ownership. They were my intellectual property with no license given to orchids interactive. The new owner added those terms quietly and didn't tell anyone.

Moving Pictures · April 5, 2012

In absence of a document with my signature on it, photo rights are mine.
Which, for those plugging smugmug, is reason No. 234 to use remote-hosting rather than upload content.

angevin1 · April 5, 2012

Moving Pictures wrote: »

In absence of a document with my signature on it, photo rights are mine.
Which, for those plugging smugmug, is reason No. 234 to use remote-hosting rather than upload content.

Hugely valid reason. But maybe more than 234 of priorities!

ChrisFL · April 6, 2012

Does this sound better?

After being denied access to my Orchids Interactive account, it has come to my attention that a new Terms of Service agreement is being implemented. This TOS includes language granting an irrevocable license for Orchids Interactive to use my original works with no restrictions (commercial use, etc.) This email should serve as a notice that any of my works posted to OI prior to the transfer of ownership will not be granted the requested license. As I am unable to access my account and not welcome to participate in the OI community, I am unable to decline the new terms of service. My original works and content were posted to Orchids Interactive under a TOS that did not grant such a license and therefore are not subject to the new terms of service. In addition to not granting a license for use, the prior TOS did not include any provision limiting my rights to seek compensation or indemnification, a hold harmless agreement, or limitations on Orchid Interactive's liabilities. As such, I retain my rights to seek compensation and damages from OI for actions including but not limited to the unauthorized use, distribution or display of my original works.

I feel the best course of action going forward would be to simply delete any content I posted from OI prior to the ownership transfer. This will ensure no further unauthorized display or use of my works takes place by OI or any third parties.

Thank you

RyanS · April 6, 2012

I agree with Art. I suggest having an attorney write the letter.

Angelo · April 6, 2012

I seem to be missing the boat here. Where or how are you injured in this matter?
The TOS indicate the site owner's right to display. That's very common for forums. Forums are read world-wide and your product is displayed for all to see. The TOS simply protects the owner in that right to have your work displayed on his site.

How are they smuggling your copyright? I don't see that they are. How are they selling your images for commercial use? I don't see that they are.

TOS are quite specific that copyright and intellectual property rights are retained by the members. So? Help me here.

.

Dan7312 · April 6, 2012

I guess it depends what you are trying to accomplish. If the site owner comes back to you and says they already have all the rights they need, what do you intend to do for an encore? What is the result you want?

You've written a legal sounding letter and it's effect and what you might be committing to is not something I know about. A lot of things in legal doc's are "magic words". Years ago when I first started I was going sign a contract with fixed dates for payments to me. I figured, what the heck, I'll talk to lawyer. The lawyer told me that in my state because my contract didn't specifically say "time is of the essence" the payment dates in the contract didn't mean anything.

All I'm saying is if you really are contemplating legal actions start with laywer, rather than finish with one. There are lawyers that specialize in photography. www.photoattorney.com is one that I found in the sticky messages for this forum, but there are many. Typically you can ask them how much what you need will cost before you make a commitment.

ChrisFL wrote: »

Does this sound better?

After being denied access to my Orchids Interactive account,

ChrisFL · April 6, 2012

Angelo wrote: »

I seem to be missing the boat here. Where or how are you injured in this matter?
The TOS indicate the site owner's right to display. That's very common for forums. Forums are read world-wide and your product is displayed for all to see. The TOS simply protects the owner in that right to have your work displayed on his site.

.

The original terms of service on which my photos were uploaded did NOT have such conditions. They only existed after the new owner took control.

I'm injured in this matter in that without my consent the new owner monetized the site by advertisements, meaning the content of the site (e.g., my photographs) now make him money. This was done with out my or any other members' knowledge. And many members are furious about it.

angevin1 · April 6, 2012

ChrisFL wrote: »

The original terms of service on which my photos were uploaded did NOT have such conditions. They only existed after the new owner took control.

I'm injured in this matter in that without my consent the new owner monetized the site by advertisements, meaning the content of the site (e.g., my photographs) now make him money. This was done with out my or any other members' knowledge. And many members are furious about it.

Right, I get how you feel and can easily see that you are angry. I totally get that. You asked about a letter to be sent, But I think Dan said it best:

Dan7312 wrote: »

All I'm saying is if you really are contemplating legal actions start with lawyer, rather than finish with one. .

Sage advice!

Internet forums and copyright?

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