Photographer Licenses Photo To Shutterstock, Is Shocked When It Plays Out Exactly How Everyone Would Imagine

from the brutal-lesson-not-completely-learned dept

Sometimes the best advantage is the advantage you take of yourself [?]. Canadian photographer Michael Stemm feels he's somehow been robbed of a market for his photography via affirmative steps he took to ensure the market fell into another entity's hands.

Stemm was shocked to find local Walmarts stocking items featuring a photograph he took. But this isn't a case of Walmart finding a picture on the internet and deciding to keep it. It's a case of "read the fine print" before you surrender your creations to a stock photo agency. Michael Zhang of PetaPixel has more details.

[I]n February 2018, [Stemm] learned of using microstock photography to generate extra income, so he “randomly uploaded one picture” to the stock photo service Shutterstock.

The photographer never read Shutterstock's terms and agreement and never checked his account again after uploading the photo, according to Globalnews.ca.

Stemm says he was then shocked to find his photo being “exploited by big companies.”

It turns out a Newfoundland-based company called Islandwide Distributors (IWD) had licensed Stemm’s photo royalty-free from Shutterstock for just $1.88.

That leaves Stemm with less than $2 to collect from Shutterstock for the hundreds of dollars of merchandise sold by Walmart featuring his photo. That may seem wrong, given the licensing terms, but it isn't. But it certainly seems wrong to Stemm, who has strong feelings about the rights he signed away to Shutterstock.

“Walmart is selling my picture without my permission throughout all New Brunswick,” Stemm writes in the description. “I feel like I am being taken advantage of in this situation.”

Well, no. Stemm took advantage of himself. Something he thought would earn him a little extra money is earning Walmart a far bigger sum. But that's exactly how licensing works. Stemm said Shutterstock could license the photo. Shutterstock did exactly that. The fact that Walmart has more than 500,000 items featuring Stemm's photo is probably unexpected, but if you really want to retain full rights to your creation, you don't hand part of those rights over to a middleman. When Walmart licensed the picture from Shutterstock, it didn't seek Stemm's permission because it didn't need Stemm's permission.

For whatever it's worth Walmart Canada has reached out to Stemm to do… something. Maybe a gift card is in Stemm's future, but it seems unlikely Walmart will ditch Shutterstock and license the photo from Stemm directly. Stemm at least knows why this happened and is unlikely to make the same mistake in the future. But him calling it "unfair" shows he hasn't fully taken these lessons to heart.

It certainly seems unfair when a company can make hundreds of dollars from a $1.88 license. But there's nothing unfair about a process that involves a voluntary relinquishment of control. Shutterstock can certainly find a greater market for someone's photos, but no one should go into this relationship believing it will result in newfound personal wealth.

Filed Under: copyright, license, michael stemm, microsstock, stock photography
Companies: shutterstock, walmart


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  • icon
    hij (profile), 7 Jan 2019 @ 2:58am

    Who sold those items?

    Seems a bit arrogant for the photographer to assume that it was his pictures that sold all those items. It is not as if people go into Walmart just to hang out with friends but upon seeing a nice glossy photo think to themselves, "Damn, that is one sweet tube of toothpaste in that picture. I need me some of that!"

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    • identicon
      Anonymous Coward, 7 Jan 2019 @ 4:04am

      Re: Who sold those items?

      True, but that is the common logic of the intellectual property crowd. Just look at how newspapers, MPAA and RIAA think it their property that creates all the value for Google.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Jan 2019 @ 7:32am

      Re: Who sold those items?

      Was that claim actually made?

      reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 7 Jan 2019 @ 8:02am

      Re: Who sold those items?

      My read is not that he claims his photo 'sold' the items, more that they added value to the items where they were used (which is why the photo is used in the first place), and that in traditional licensing arrangements, he would get a royalty for that added value. He of course choose to upload to a royalty free licencing operation, and this is the result.

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  • identicon
    Nobody, 7 Jan 2019 @ 3:59am

    Depends...

    I haven't read the Shutterstock contract at all. But I know a lot of these guys have usage clauses in them that specify things like online and offline use. Walmart may have been within the terms of their contract. They may not have been. This one strikes me as a possible misuse of royalty free stock photography, but I could be wrong.

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    • identicon
      Anonymous Coward, 7 Jan 2019 @ 4:31am

      Re: Depends...

      Perhaps you will read and understand an article once before commenting, because like the photographer, you failed to notice that:

      >It turns out a Newfoundland-based company called Islandwide Distributors (IWD) had licensed Stemm’s photo royalty-free from Shutterstock for just $1.88.

      and Walmart is an innocent party in all of this, although they are getting the blame.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 7 Jan 2019 @ 4:39am

        Re: Re: Depends...

        "Walmart is an innocent party in all of this, although they are getting the blame"

        As per usual, when someone whines about something they think is being done wrongly, they would rather blame the nearest, richest target than whoever actually did the thing they're complaining about.

        Especially here, where it seems the real culprit is the guy doing the whining.

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        • identicon
          Paul Brinker, 7 Jan 2019 @ 8:42am

          Re: Re: Re: Depends...

          Sometimes, the richest target is also the one with the policies that drive contractors and vendors to take the actions they take.

          Just think of the Wells Fargo setting policies that drive sales reps to create fake accounts. Walmart is known to put policy pressure on almost everyone who does business with them.

          (I am not saying this is the case here)

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          • icon
            PaulT (profile), 7 Jan 2019 @ 9:10am

            Re: Re: Re: Re: Depends...

            "Walmart is known to put policy pressure on almost everyone who does business with them."

            But, that's irrelevant to the situations here. Whatever the issues here, the contract that Stemm is complaining about was done well before Walmart ever got involved. This is a standard contract that would apply whether it was Walmart or a local retailer who licensed the product.

            I'm all for them being held to account to their own actions in such cases, but that doesn't apply here.

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            • icon
              Anonymous Anonymous Coward (profile), 7 Jan 2019 @ 9:18am

              Re: Re: Re: Re: Re: Depends...

              Walmart seems to have a policy that requires their security people to want to search me every time I leave one of their stores. I don't and won't allow that, so I don't go to Walmart anymore. In addition, because of that policy, I don't and won't do business with them online.

              So Walmart isn't the one who licensed the photo, they purchased and sold products from someone who did license the photo, and used it on their products. Which leaves Walmart innocent in this instance, but it does not absolve them of their other wonky policies. Which means Walmart is easy to hate and therefore easy to apply blame to, even when it is actually innocent.

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              • icon
                PaulT (profile), 7 Jan 2019 @ 10:45am

                Re: Re: Re: Re: Re: Re: Depends...

                "Which means Walmart is easy to hate and therefore easy to apply blame to, even when it is actually innocent."

                Which is a dumb way of doing things, but such is human nature, I guess. I prefer a world in which blame is applied to those who are actually to blame.

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    • icon
      rangda (profile), 7 Jan 2019 @ 7:13am

      Re: Depends...

      "I haven't read the Shutterstock contract at all"

      "This one strikes me as a possible misuse of royalty free stock photography"

      The level of cognitive dissonance that goes into putting the above two sentences in the same paragraph is frankly astonishing.

      If you are interested in commenting on whether this was a possible misuse, perhaps you should read the terms before commenting. Here, I'll help you out:

      https://www.shutterstock.com/license

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      • icon
        PaulT (profile), 7 Jan 2019 @ 7:29am

        Re: Re: Depends...

        "The level of cognitive dissonance that goes into putting the above two sentences in the same paragraph is frankly astonishing."

        The best part is that he refers to "royalty free stock photography" when addressing an article that's literally talking about the royalties paid for the photo.

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        • identicon
          carlb, 7 Jan 2019 @ 8:22am

          Re: Re: Re: Depends...

          Most likely "royalty-free" only means that there isn't a charge per item or per impression - a client pays for the image once and can then print as many copies as they choose.

          Not the same beast as public domain, which actually is free.

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          • icon
            James Burkhardt (profile), 7 Jan 2019 @ 8:25am

            Re: Re: Re: Re: Depends...

            Thats exactly what it means. And its exactly why the photographers statements make no sense.

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          • icon
            PaulT (profile), 7 Jan 2019 @ 8:27am

            Re: Re: Re: Re: Depends...

            Well, that is confusing if that's the correct interpretation, but I withdraw my mockery if true. It's far from the only wrong statement in the original post, however.

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  • icon
    tom (profile), 7 Jan 2019 @ 4:29am

    Advertising Opportunity?

    "My picture is so good that Walmart has sold hundreds of thousands of items featuring my picture." Include links to the items on Walmart's website.

    Post on your own website where you offer other photos for licensing at more profitable to you terms.

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  • icon
    PaulT (profile), 7 Jan 2019 @ 4:46am

    So, guy wants an easy payday with doing as little work as possible, but neither bothers to read the contract he signed nor thinks about how relatively little he's going to get by making other people do all the work vs. doing the work himself.

    It's probably a shock, but at least he's learned the hard way that he needs to work for a living without losing much in the process. While he lacked common sense when he posted the photo without thinking about what he was agreeing to, he had it when he decided to test with a single photo rather than uploading his entire portfolio (which, by the way, is how you get passive income from these kinds of places - you're never going to make a living with a single photo).

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  • identicon
    David Kastrup, 7 Jan 2019 @ 4:49am

    You want unfair?

    "Bay mir bistu sheyn" netted its composer Sholom Secunda $30 in royalties for selling the rights. Fortunately, the rules of that time let copyright expire after 25 years with an option to renew, so he ultimately got a good second helping.

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    • identicon
      Anonymous Coward, 7 Jan 2019 @ 11:12am

      Re: You want unfair?

      Billy Joel made $5,000 off his first eight million records sold because he signed away his rights for rent money. It's why he played at a piano bar since that was the only way he could make money. Only with "Glass Houses" in 1980 did he begin to really get paid.

      I don't sympathize with the photographer because the whole point of those stock websites is to increase artist visibility, and he did that. Distribution is what made his work valuable here, not his copyright.

      Compare this to someone who has had their book's titles changed and loaded onto those mass-piracy sites where the illegal downloads ran into the six figures. Sites which write perishable content generally don't have this problem.

      With so much work out there on the internet it's hard to stand out. This makes distribution the key to profit, and he got a boatload of that. One would think that his portfolio with this information and photo should generate a great deal of business for him (weddings, etc.).

      reply to this | link to this | view in chronology ]

  • identicon
    JD, 7 Jan 2019 @ 4:56am

    "It certainly seems unfair when a company can make hundreds of dollars from a $1.88 license."

    Would does that seem unfair?

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  • icon
    Toom1275 (profile), 7 Jan 2019 @ 5:23am

    Zhang should have kept the photo exclusively on his own website.

    Then Walmart would have had to pay 100x as much to get it from Getty instead.

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    • identicon
      Michael, 7 Jan 2019 @ 5:48am

      Re:

      Or, they would not have noticed the image at all since they get their images from Shutterstock.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 7 Jan 2019 @ 6:21am

        Re: Re:

        Exactly. It's a fallacy to believe that he would simply have made more money had the image not been on Shutterstock. Chances are, they would simply have chosen a similar but different image on the site instead. of which there seem to be many.

        I can understand the disappointment, but like most people who start whining about how little they get paid for having other people do the work, he's overvaluing what he did. The image was probably chosen because it was the coolest looking photo that fit the search terms when they searched for placeholder images on Shutterstock, not because of any inherent value that people would go chasing for.

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    • icon
      Stephen T. Stone (profile), 7 Jan 2019 @ 5:50am

      Re:

      Walmart didn’t license the photo, though. Per the article, Islandwide Distributors licensed Stemm’s photo.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 7 Jan 2019 @ 6:22am

      Re:

      I think you mean Stemm, not Zhang ;) Zhang was the author of the linked article, not its subject.

      reply to this | link to this | view in chronology ]

      • icon
        Toom1275 (profile), 7 Jan 2019 @ 8:13am

        Re: Re:

        Whoops yeah. That's what I get for rushing a comment during breakfast as I'm leaving for work. I just scrolled back up to the article while writing and thought the first name that caught my attention was the photographer's.

        reply to this | link to this | view in chronology ]

    • identicon
      kallethen, 7 Jan 2019 @ 7:12am

      Re:

      It's too bad people are too focused on the Walmart angle to appreciate the zing against Getty... I at least saw the funny.

      reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 7 Jan 2019 @ 5:56am

    What does Stemm owe the owner of the item that he took a picture of? Did he already pay it?

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    • icon
      ArkieGuy (profile), 7 Jan 2019 @ 7:36am

      Most likely, nothing....

      If you read the source article, the photo was of snow falling on a bridge. Unless the bridge was built after 1990 there will be no copyright on it.

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      • icon
        JoeCool (profile), 7 Jan 2019 @ 8:18am

        Re: Most likely, nothing....

        I think he's pointing out one of the major fallacies of copyright maximalists: they want EVERYTHING to be owned and licensed... unless they used it themselves.

        reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 7 Jan 2019 @ 6:19am

    The Early Days of Netflix

    A long time ago, in a galaxy far, far away . . .

    Netflix rented disks made of delicious polycarbonate plastic by snail mail with return envelopes.

    Then one day Netflix offered movies by some new fangled streaming over the intarweb tubes.

    Hollywood, just like the music recording industry didn't have any vision and therefore didn't believe this internet streaming of movies would work out. After all, why would anyone want a service that didn't require you to even get up from your chair to put in a DVD, let you watch any movie you wanted, at any time you wanted, without annoyitating commercials, for cost far lower than cable TV?

    Before very long, but still long ago from now, Netflix had quite a lot of really good movie titles.

    Like this photographer, I'm sure Hollywood thought they would license their movies "for a little extra money". After all, this streaming thing wasn't going to last or ever take off.

    Netflix streaming blossomed. Hollywood must have been green with envy -- how hard could it be to set up a streaming service? Eventually many of those good titles on Netflix disappeared to be replaced with less desirable content. Raise your hands if you remember this?

    Like this photographer, I'm sure Hollywood was shocked that someone else could make a lot of money from a licensed copyright work.

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    • icon
      That Anonymous Coward (profile), 7 Jan 2019 @ 6:33am

      Re: The Early Days of Netflix

      mmmmm sexy plastic discs....
      special editions missing 90% of the features of a real disc to 'protect' sales...

      hell I am old enough to remember Disney putting VHS tapes back into the Disney Vault for a few more decades to drive sales.

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      • identicon
        Anonymous Coward, 7 Jan 2019 @ 7:58am

        Re: Re: The Early Days of Netflix

        I believe they still do that with certain films and bluray editions. Was just reading an article about it a few days ago but can't find it now.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Jan 2019 @ 9:09am

          Re: Re: Re: The Early Days of Netflix

          Was just reading an article about it a few days ago but can't find it now.

          The Disney Vault strikes again!

          reply to this | link to this | view in chronology ]

        • icon
          James Burkhardt (profile), 7 Jan 2019 @ 11:09am

          Re: Re: Re: The Early Days of Netflix

          If I remember correctly, i was looking this up with concerns over the Rocky Horror Picture Show being owned by Disney now, nothing has gone back into the vault in 5 years, and nothing new has been added in like a decade, home video wise (The traditional Vault. They have however 'vaulted' the rights to theaters wanting to show some big ticket films.

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  • icon
    That Anonymous Coward (profile), 7 Jan 2019 @ 6:31am

    Tale as old as time. blaming everyone but yourself... o/~

    Artist signs a deal with a gatekeeper to make all of that money they hear about others making.
    Artist assumes gatekeepers are there to protect & help the artists.
    Artist see's work in use in commerce.
    Artist assumes a windfall is waiting.
    Artist gets check for $0.088 cents.
    Artist reads terms.
    Artist wonders who they can blame other than themselves.
    Artist imagines the trillions of dollars they should have been paid.
    Gatekeeper cashes their checks.
    Artist blames company who followed the law & did everything legally.
    Artist screams at 3rd party for robbing them & demands satisfaction.
    Wonks try to play this as a big corporation robbing the artist, but blame the other guy not the gatekeeper.
    Wonks lobby for more laws to 'protect' artists, but make sure that it is still legal to click a box at the end of 3pt legal contracts online & screw yourself.
    Artist becomes another horror story about how copyright scofflaws rob artists blind.
    Gatekeeper gets more artists to click the box sealing their fate.
    Gatekeepers stay rich, artists stay poor, & they blame everyone else rather than admitting the system is the problem & artists believe the hype that gatekeepers are their friends.
    Years later image is used in a fairly popular meme & a flurry of take down notices follow killing it in its infancy.
    Content remains locked up and unknown.
    Artist laments on death bed that if not for people stealing the content they could have been rich.
    100 years later gatekeeper lobbies for another copyright extension because they only had 170 years to squeeze every cent out of the content.
    125 years the artists children file a lawsuit against an artist who took a picture that had some similarities and argue to the court that the new artist stole the 'feel' of the original work and they deserve 90% of the profit of the new work.
    150 years later, it all repeats once again because somehow artists still think gatekeepers are their friends not foes.

    reply to this | link to this | view in chronology ]

    • icon
      crade (profile), 7 Jan 2019 @ 7:34am

      Re:

      It's an even older story. Person gets scammed, person finds out the scam is legal and the law won't help them. Person is still scammed.

      In your story the Artist is legally taken advantage of and the correct one to blame is the legislators who make it legal to take advantage of people in this way.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Jan 2019 @ 8:05am

        Re: Re:

        Or people read the contract they are signing and say, that's a load of B.S., don't sign it. Go on on their own and do things for themselves and make more money.

        These days it's easier than ever. You put very little effort into doing something, and you're going to get very little back.

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      • icon
        PaulT (profile), 7 Jan 2019 @ 8:14am

        Re: Re:

        Except there's really no scam, if you bother to read what he agreed to. It's in plain language.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Jan 2019 @ 8:30am

        Re: Re:

        > the correct one to blame is the legislators who make it legal to take advantage of people in this way

        Of course you mean "the legislators who did nothing to prevent taking advantage of people in this way", right? And since when is it appropriate to blame someone for doing nothing rather than the person who actually committed the wrong?

        Legislators are, by and large, self-serving and otherwise useless but your position is as bad as blaming Walmart for licensing a photo willingly uploaded to an image licensing service.

        reply to this | link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 7 Jan 2019 @ 9:39am

        Re: Re:

        We really really need to stop demanding a law for everything.

        Person fails to read contract, cries foul when contract is followed.
        The terms & conditions were there, in really plain words according to people who went & read them.
        Imagining that this will make you tons of cash because someone else did it and they got paid well, means you are dumb.
        Don't ask if they signed the regular contract.
        Don't ask if they asked a lawyer to review the terms.
        Just assume that because you are an 'artist' you are specially protected.

        Car contract said AS-IS, you didn't bother to have your own mechanic check it out and discover there is no engine in it.
        Do we need a law saying it has to have an engine?
        Do we need a law forcing the seller to go down a checklist of things the average car buyer should do when looking to buy a used car?
        The contract says steering wheel extra, so we need laws or we need to slap the buyer who signed the damn contract?

        reply to this | link to this | view in chronology ]

  • identicon
    Rick Sarvas, 7 Jan 2019 @ 6:31am

    It gets even better

    The TD article missed one final gotcha - Stemm may have had a $2.88 sale, but he can't withdraw the funds until he reaches the minimum threshold of $50. Given Stemm's previous experience with Shutterstock's licencing, I suspect he's not going to be unwilling to do that again. If that's true, he will never be able to withdraw his $2.88, and essentially licensed his work for free.

    At least he got "exposure".

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    • icon
      That Anonymous Coward (profile), 7 Jan 2019 @ 7:13am

      Re: It gets even better

      Q: How is this a gotcha?
      Failure to read contracts isn't any one elses fault.

      I note even recently some recording contracts still set money aside to pay back the label for vinyl breakage... even when it was never released on vinyl.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 7 Jan 2019 @ 7:21am

      Re: It gets even better

      "Stemm may have had a $2.88 sale"

      $1.88

      "he can't withdraw the funds until he reaches the minimum threshold of $50"

      I've got around $70 hanging around on Amazon and Google's sites from ads on a blog I used to run. The blog no longer exists, and I'm unlikely to run another site with ads at any time in the near future, but I can't access the money as it's below the withdrawal thresholds. But, you won't see me whining about it, because I understood the terms when I signed up and accepted I would have to earn more than I currently have to access it.

      "At least he got "exposure"."

      He got exactly what he asked for - a photo he otherwise just had lying around on his hard drive and Instagram page to be monetised on a site that licences photos cheaply. If he wants to make a living from them, he needs to either upload more than one photo or use an actual agent to sell his photos individually.

      Also, I presume the "exposure" comment was sarcastic, but he's got way more attention here than he would have done had he left the photo where it was.

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      • identicon
        Anonymous Coward, 7 Jan 2019 @ 9:18am

        Re: Re: It gets even better

        Given the photography aspect involved, the "exposure" reference was almost certainly an attempt at a pun on how photography captures the image into long term storage (whether a USB card or a photographic negative).

        reply to this | link to this | view in chronology ]

  • icon
    svyerk (profile), 7 Jan 2019 @ 6:52am

    The benefit to Walmart

    The benefit to Walmart is not the guy's photography, but a cheap legal picture for them to use. It only became famous and widely used specifically because of its cheap legality. Otherwise they would have used someone else's $1.88 picture.

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 7 Jan 2019 @ 7:10am

      Re: The benefit to Walmart

      *giggles*

      Things are only famous because they stole the content of creators!
      I know I often make sure to see which stock photo on bottles is the best when making decisions to purchase things.

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      • identicon
        Anonymous Coward, 7 Jan 2019 @ 8:08am

        Re: Re: The benefit to Walmart

        Except nothing was stolen. It was 100% legally paid for. The fact that he can't be bothered to read a contract before putting a picture up is on him. He got paid by the legal contract he signed but didn't bother to read.

        reply to this | link to this | view in chronology ]

        • icon
          That Anonymous Coward (profile), 7 Jan 2019 @ 9:32am

          Re: Re: Re: The benefit to Walmart

          Unwritten rules of TechDirt #1918
          Always assume anything TAC says is dripping with enough sarcasm you could slip on.

          Human nature (and what we've been allowing now far to often) is to assign blame elsewhere & demand change.
          The driver was texting, Apple shoudl pay.
          My kids are fat, McDonalds should have to remove toys form happy meals.
          The bar shoudl pay for serving the driver booze, they should have known he had 14 DUI's & would be a danger.
          We need more warning signs to protect selfie takers form doing stupid dangerous things & dying to get a shot.
          I saw the kid lick the pole & get his tongue frozen to it in a movie, so its the movies fault my kid decided it was just movie magic & set out to prove it.
          DC comics should pay me because my kid put on a bath towel as a cape & tried to fly off of the top of the garage.
          It's not the kids fault that he got loaded & killed a bunch of people in yet another drunk driving crash, he wasn't raised right. We shouldn't be angry there was video of him violating probation by drinking, not be angry his mother helped him flee the country to avoid the punishment, he had no understanding of cause & effect so it is societies fault.

          I'd give more examples but i'm sick to my stomach right now...

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    • identicon
      Anonymous Coward, 7 Jan 2019 @ 8:35am

      Re: The benefit to Walmart

      The benefit to Walmart is not the guy's photography, but a cheap legal picture for them to use.

      Actually the value to Walmart is the mark-up on the product, made and branded by somebody else. They did not select or license the photo, that was done by Islandwide Distributors (IWD).

      reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 7 Jan 2019 @ 7:21am

    "It's a case of "read the fine print" "

    More like another case of a document on the internet intentionally obfuscated and made overly burdensome for the purpose of legally grifting people out of something.

    I never get how they decide what is and isn't ok to grift out of people this way.. You can't get away with hiding *everthing* in these click throughs, but it is allowed to trick people out of *some* types of things this way.

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    • icon
      Thad (profile), 7 Jan 2019 @ 7:39am

      Re:

      Yeah, I'm inclined to agree. Yes, this is a case where somebody surrendered his rights without reading or understanding a click-through license agreement -- but everybody does that, all the time. I can understand blaming the artist for not doing his due diligence, but some fault also lies in a system that's extended the definition of "contracts" to include click-through agreements that most people can't understand and nobody is allowed to negotiate.

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 7 Jan 2019 @ 7:50am

        Re: Re:

        Yeah, that's the piece that always gets me with TOS's and other click through 'contracts'. I have always thought that a contract is something that is mutually negotiated with both parties participating in the negotiation. Even with standard form contracts offered by one party, the other party has the ability to strike through portions they disagree with, then if the issuing party does not agree with the strike through, they don't sign. Both parties need to agree with the final negotiated result.

        Of course there is a difference when one is dealing with millions and millions of parties on the other side. Here is where some form of consumer protection should be applicable. The problem with that is those consumer protections tend to be laws, and every country sees their laws differently. So I am not sure what the answer is, in the end. Getting all countries to embrace a similar set of consumer protections does not seem likely.

        reply to this | link to this | view in chronology ]

        • icon
          crade (profile), 7 Jan 2019 @ 8:56am

          Re: Re: Re:

          in my opinion We need some sort of independent standardization (ISO or someone) to set up proper terms that can actually be reviewed independently and consumers can have some sort of confidence that if Facebook (or whoever) says their agreement complies with ISO X then they actually have a good idea what clicking "I agree" will mean to you without having to make a separate individual investment every time they want to use a service.

          The trouble is though that even though 90% of people might not actually agree with the terms of the sites if they took the time to understand the implications in their particular case, the number of people that it actually comes back to bite in the ass is so small that no one cares until it's actually them.

          reply to this | link to this | view in chronology ]

          • icon
            Anonymous Anonymous Coward (profile), 7 Jan 2019 @ 9:10am

            Re: Re: Re: Re:

            Then there is the problem with the company reserving the right to change their terms of service upon any whim. Which leaves the customer, who agreed to the original term of service (whether they agreed or not but were willing to click 'agree' because they wanted in) having agreed to something they never had a chance to 'agree' to.

            reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 7 Jan 2019 @ 8:23am

        Re: Re:

        How would you prefer the contract be done? Most sites couldn't operate if you needed to hire a lawyer to agree to the standard contract.

        "nobody is allowed to negotiate"

        Because it would be utterly unworkable if every user of a site could negotiate individual terms.

        "Yes, this is a case where somebody surrendered his rights without reading or understanding a click-through license agreement -- but everybody does that, all the time"

        Most people don't read any contract properly before they sign, physical or digital. That doesn't mean they shouldn't apply when someone decides they could have got a better deal.

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 7 Jan 2019 @ 8:38am

          How would you prefer the contract be done?

          Before the submission goes through, the contract is shown in an abridged format with the major points displayed in “informal” text (with an option to read the contract in full displayed beneath those points). At the bottom of the page is an "I have read the contract and agree to its terms" button that requires solving a CAPTCHA to confirm. After that, the site presents one more “Are you sure?” button (with another CAPTCHA) before the submission goes through. Annoying? Possibly. But which would you rather have: the time to think through and make sure you agree with the terms of that contract, or a situation like the one in the article?

          reply to this | link to this | view in chronology ]

          • icon
            PaulT (profile), 7 Jan 2019 @ 9:13am

            Re:

            I absolutely guarantee that if you implemented that, it wouldn't lead people to actually read the contract.

            "But which would you rather have: the time to think through and make sure you agree with the terms of that contract, or a situation like the one in the article?"

            The situation in the article is that the guy didn't conceive that the photo could show up on items in Walmart, and believes that being so visible means that he deserves more money. That would still apply no matter how annoying you made it to sign up.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 7 Jan 2019 @ 9:21am

              Re: Re:

              It seems he believed he should be paid for each item his photo appeared on rather than only once for up to 500,000 uses. Which implies, of course, that he never read the contract he agreed to.

              But which would you rather have: the time to think through and make sure you agree with the terms of that contract, or a situation like the one in the article?

              We already have both. You can take all the time you want to read through the terms of service for any site or service you want to use. People generally don't and we end up with the article being discussed.

              We don't need any new laws or regulations for this. You can't legislate stupid or lazy out of existence.

              reply to this | link to this | view in chronology ]

              • icon
                PaulT (profile), 7 Jan 2019 @ 10:35am

                Re: Re: Re:

                "It seems he believed he should be paid for each item his photo appeared on rather than only once for up to 500,000 uses. Which implies, of course, that he never read the contract he agreed to."

                Or that he read it, but didn't understand it. Which can be the fault of people writing contracts to be as obtuse as possible, but I don't believe that's the case here.

                reply to this | link to this | view in chronology ]

        • icon
          Thad (profile), 7 Jan 2019 @ 10:03am

          Re: Re: Re:

          Because it would be utterly unworkable if every user of a site could negotiate individual terms.

          Bargaining power is one of the definitions of a legal contract; Techdirt's been noting that for over a decade.

          To date, courts have upheld license agreements as legal. That doesn't mean that they should be. Your argument that they're expedient isn't a very good defense; lots of things that violate customers' rights are expedient.

          IANAL but it seems to my layman's brain that a typical EULA flags several of the factors for unconscionability. I've already mentioned unequal bargaining power; most EULAs also include clauses limiting warranty, and a provision that the agreement can change at any time without notice (which sounds an awful lot like unfair surprise to me).

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Jan 2019 @ 10:52am

          Re: Re: Re:

          Most sites couldn't operate if you needed to hire a lawyer to agree to the standard contract.

          Have a business model that makes it easy for no one to balk at your standard contract.

          reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 7 Jan 2019 @ 7:50am

      Re:

      Nobody was being grifted, Shutterstock actually put it in layman's terms here:

      https://www.shutterstock.com/contributorsupport/articles/kbat02/000006640

      The plans with size restrictions will generate anywhere from $.81 - $1.24 and the plans with no size restrictions will generate $1.88 - $2.85 per download with a Standard license, depending on your Lifetime Earnings tier. Enhanced license On Demand downloads will generate earnings of 20-30% from the purchase price, depending on your Lifetime Earnings tier.

      Then the description of the licences from https://www.shutterstock.com/license:

      A STANDARD IMAGE LICENSE grants you the right to use Images:
      ...
      Printed in physical form as part of product packaging and labeling, letterhead and business cards, point of sale advertising, CD and DVD cover art, or in the advertising and copy of tangible media, including magazines, newspapers, and books provided no Image is reproduced more than 500,000 times in the aggregate;

      That seems pretty damn clear to me. There may be a question as to whether the photo has been reproduced more than 500,000 times and thus eligible for the 20% on top of the $1.88 that he'd be entitled to, but otherwise he got exactly what he agreed to

      This is just a classic case of someone not reading what they signed up for. Or, at the very least, someone asking other people to do the work for them, then getting annoyed when they're not collecting rent after the site is good at their job.

      reply to this | link to this | view in chronology ]

      • icon
        crade (profile), 7 Jan 2019 @ 9:56am

        Re: Re:

        The thing is, since these companies know up front most people won't read all the terms, where is line for what they can get away with taking from people in the fine print?

        Hypothetically speaking if shutterstock changed that link tomorrow to say "if you are over 65 you owe us 5000$ each time someone downloads your image" and a bunch of seniors lose their savings because they didn't read carefully, the courts would never enforce it because it would be obvious that the "agreement" is a farce but in my mind at least there is a massive grey area regarding how much they can get away with taking from people by relying on the fact that they know some people won't read or understand.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 7 Jan 2019 @ 10:42am

          Re: Re: Re:

          "The thing is, since these companies know up front most people won't read all the terms, where is line for what they can get away with taking from people in the fine print? "

          Nothing was hidden in the contract, they even go out of their way to explain things in layman's terms, and what happened is exactly as stated in that explanation.

          I'm all for consumer protections, but nothing untoward happened here. Your ridiculous hypothetical would almost certainly be illegal. Someone stating clearly up front what your cut will be when they do the work of licensing your image for you, and abiding by that agreement, is not.

          If something shady is in the T&Cs, they deserve criticism. That did not happen here.

          reply to this | link to this | view in chronology ]

  • icon
    Gary (profile), 7 Jan 2019 @ 8:56am

    Opportunity

    Regardless of what licensing this guy chose, Wal-Mart would have purchased whatever $1.98 picture they could find. Why would they ever choose a picture that could cost them royalties when Shutterstock has so many pictures going for a song?

    Remember the happy hills of Windows XP? A royalty free license. The photographer was kicking himself for selling it so cheap but would Microsoft have used that pic if it wasn't a flat cost license?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Jan 2019 @ 9:39am

      Re: Opportunity

      Why do photographers try to value their work on what it becomes associated with, and the value of that, rather than the effort in creating it?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Jan 2019 @ 1:18pm

      Re: Opportunity

      The model used for "Mavis Beacon Teaches Typing" was paid a flat $500 for use of her likeness and photo.

      The who9le point of a stock website is to avoid paying the acopyright holder in exchange for introducing their work to a very large audience.

      There's no way a photographer whose image was used on a top-selling product like that shouldn't be able to capitalize. This wasn't piracy, but a legitimate business deal in which he's refusing to cash in on what was promised to him (distribution) and delivered.

      reply to this | link to this | view in chronology ]

  • icon
    Vic B (profile), 7 Jan 2019 @ 11:05am

    Some are fighters looking for opportunities in challenging times while some are whiners despairing at the injustices they suffer even in best of times.

    reply to this | link to this | view in chronology ]

  • icon
    nerdrage (profile), 7 Jan 2019 @ 11:59am

    If this guy had any sense, he'd be touting the fact that his photos are so hot, Walmart chose them for their amazing profit-making potential. If he can't figure out how to parlay this unexpected PR windfall into more money, he's in the wrong business. Or any business. If you work for yourself, you have to learn how to use PR to get more work.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 7 Jan 2019 @ 12:12pm

      Re:

      "Walmart chose them for their amazing profit-making potential"

      As stated many times above, Walmart didn't choose anything. Their supplier IWD bought the photo, and it's unclear from the evidence supplied whether they had an exclusive contract with Walmart or if they just happened to be one of their customers for the resulting products. Even if it is an exclusive contract, it's almost 100% unlikely that they chose their products based on his photo.

      Also, you keep saying "photos" in the plural. The guy admit that he only uploaded the single photo as a one-off test to see if he got anything.

      "If he can't figure out how to parlay this unexpected PR windfall into more money, he's in the wrong business."

      From the linked article:

      "The video has since been viewed over 60,000 times, and it attracted the attention of Walmart Canada, which apologized in the comments and reached out."

      Chances are, he's getting a windfall from Walmart, who have relatively little to lose here. They can easily throw him a couple of grand or a tiny royalty on the sold products and get cheap marketing for them appearing to be the good guys, even though they didn't do anything wrong to begin with.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Jan 2019 @ 1:34pm

        Re: Re:

        Walmart or other retailers will want to use his work.

        Stock websites are for portfolio-building, which is why artists surrender royalties to them. Thanks to the internet, everyone's a creator and producer now, so to stand out one must make this tradeoff.

        The difference between this and piracy is that the tradeoff is made *willingly*. I used to design my own cover art rather than use stock because I thought it had no value since anyone else could use it as well.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 8 Jan 2019 @ 7:27am

          Re: Re: Re:

          This whole thing is ridiculous to me. I don't even have to read the TOC to understand what Stock Photography is - business have been getting images through this kind of service for decades (I remember when companies would buy CDs of stock photos and clipart). As a photographer I find it impossible to believe that he didn't know what he was getting into when he submitted pics to the service.

          reply to this | link to this | view in chronology ]

  • identicon
    slick8086, 7 Jan 2019 @ 9:52pm

    > Maybe a gift card is in Stemm's future

    Maybe a gift card featuring his picture!

    reply to this | link to this | view in chronology ]


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