March 27, 2008

A note about PS Express terms of use

Amidst all the positive, enthusiastic responses to the launch of Photoshop Express, I’ve seen some concerns about the terms of use.  This item in particular draws attention:

8. Use of Your Content. Adobe does not claim ownership of Your Content. However, with respect to Your Content that you submit or make available for inclusion on publicly accessible areas of the Services, you grant Adobe a worldwide, royalty-free, nonexclusive, perpetual, irrevocable, and fully sublicensable license to use, distribute, derive revenue or other remuneration from, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other Materials or works in any format or medium now known or later developed.

This afternoon I got the following note from the Photoshop Express team:

We’ve heard your concerns about the terms of service for Photoshop Express beta.  We reviewed the terms in context of your comments – and we agree that it currently implies things we would never do with the content.  Therefore, our legal team is making it a priority to post revised terms that are more appropriate for Photoshop Express users.  We will alert you once we have posted new terms.  Thank you for your feedback on Photoshop Express beta and we appreciate your input.

I’ll post an update when I know more. [Update: See the revised terms of service.]

Posted by John Nack at 6:19 PM on March 27, 2008

Comments

  • PSC_Dave — 8:07 PM on March 27, 2008

    i would hope the this section of the terms of use is rewritten in order to protect the monetary rights of our work.
    Many of us have copyrighted our work and would like to use this new online service of PS express.
    But it looks like we should only use it for photos that have no meaning or monetary value to us.
    If it were for clients, company projects, etc… then it would seem to be a conflict of interest.

  • Roger — 8:59 PM on March 27, 2008

    Maybe they expected the only users would be 12 year olds removing red-eye from birthday party pics.
    Oh, but then the whole thing’s unenforceable. :-)
    Really, what were they (lawyers) thinking?
    Any amateur lawyer starting out such an onerous clause with “Adobe does not claim ownership of Your Content” would get ripped apart in a court. “You’re not actually giving us your first born child, but after the rest of this jargon, he will be working for us for free long after he’s grown old and died.”

  • Aaron B. Hockley — 9:11 PM on March 27, 2008

    I look forward to Adobe’s response on this… I blogged about it earlier today at http://www.hockleyphoto.com/blog/photoshop-express-license/ and it also came up in a podcast that I recorded tonight (to be published next week) so I look forward to passing along some positive news.

  • K Brown — 10:29 PM on March 27, 2008

    tsk tsk tsk…. who’s a naughty boy, er company….?
    [Caveat: I'm not a lawyer, nor am I a member of the PX team, so I don't want to speak out of turn. Having said that, I think it's not a case of naughtiness & is rather one of miscommunication, where the legal terms ended up being written more broadly than was intended. The right folks are working to make the terms more closely match what was intended in the first place. --J.]

  • Joe Decker — 10:30 PM on March 27, 2008

    Thanks!

  • Niklas B — 2:56 AM on March 28, 2008

    I have been quite a critic of Adobe practices on yuor blog John, however this time I will step in for you since I believe this is a rational ToU paragraph. Let’s go through it step by step:

    Use of Your Content. Adobe does not claim ownership of Your Content. However, with respect to Your Content that you submit or make available for inclusion on publicly accessible areas of the Services, you grant Adobe a…

    worldwide

    The Internet spans the whole world.

    license to use

    Adobe have to process our images, create thumbnails, store and so on.

    distribute

    Adobe need not only to host your images, they have to send them over the internet to you and your friends and anyone you wand (with respect to your privacy settings). If this was missing Adobe would probably be no different than anyone distributing a torrent of the latest Hollywood blockbuster.

    derive revenue or other remuneration from

    Because our images online, on Adobe’s servers, are the main business plan for PS Express I see no problem for Adobe to sell flickr-like services and making a buck on it.

    reproduce

    In other words: Show, display, render the images.

    modify, adapt

    Create thumbnails and different sizes, cut, add borders, change file format, compress et.c.

    translate

    Move between servers, move to backup storage, send to our computers.

    publicly perform and publicly display such Content (in whole or in part)

    Show on the web. Doh!

    incorporate such Content into other Materials

    Incorporate into HTML, CSS, JavaScript, Flash, AIR, and so on.

    or works in any format or medium now known or later developed

    Without this paragraph; ponder if AIR was delayed released later this year, Adobe might not have been Able to bild PS Express with AIR.
    We can see that Zooomr, Facebook, Yahoo groups & Flickr have very simliar terms of use.

  • LatFoto — 4:10 AM on March 28, 2008

    Thanx. I have the same question to Adobe ;-).

  • deadofknight — 11:47 AM on March 28, 2008

    My 2 cents.
    This is a pretty quick response to a lot of complaining. I am in a love/hate relationship with Adobe but in this case it appears that they admit that their terms reach beyond those intended (attorneys almost always try to maximize their clients position) and Adobe appears to be resolving the issue with language that is appropriate for all of us End Users that use Adobe products for our own commercial and financial livelihoods.
    I would be patient while Adobe resolves the problem ASAP and then we can throw rocks if they review the issue and still don’t deliver the goods.
    Out…

  • Pedro Estarque — 12:16 PM on March 28, 2008

    Niklas B:
    Although I’m not a lawyer either, the terms above allows Adobe to use our images in fair ways like you described, which I’m sure is their intention, but might also leave room for other uses.
    So a stricter ToU would clear the paranoid fear of finding your family’s pictures in a banner in Paris or your client’s images used by their competitors.
    No fuss needed, but a clearer ToU wouldn’t hurt either.

  • Brad Perks — 4:32 PM on March 28, 2008

    sub license, distribute and derive revenue?
    What does the photographer get? A gallery?
    The site says “give your photos a free ride”.
    Should it say “give us your photos for FREE?”
    Is this the new and improved Adobe Stock Photos?
    Why buy “penny stock” when you can now get it for free?

  • adobe user — 5:59 PM on March 28, 2008

    If I read this right, that lets them build a Getty Images style repository of all the best stuff that they can then sell or use in any way they like. So, if, for example, you have a goofy shot of yourself, you could be the next posterboy for “Idiot” on the next Madison Ave assault. Or all your good stuff could be taken, burned to a DVD and sold by Adobe to anyone who wants it or, indeed, included in a clipart DVD in the pay version of PS.

  • Alex — 6:09 PM on March 28, 2008

    John, does this mean I am going to have to unsubscribe and then subscribe again with the new and improved legalese? I would just add at this letter that permission is hereby denied to Adobe to use my images without my express permission. There that is the end of that. Anyway how is the baby? I will gladly come out and do a shoot of your family, just let me know. Thanks.

  • Atul Dongare — 11:39 PM on March 28, 2008

    Yes friends,
    This is one of the nice blog posted. Thank you very muh for such a informative blog.

  • Brad Perks — 7:58 AM on March 29, 2008

    “grant Adobe a worldwide, royalty-free, nonexclusive, perpetual, irrevocable, and fully sublicensable license to use, distribute, derive revenue or other remuneration from, reproduce,”
    Adobe wants to think about the license now? How did those words get in there? Adobe wants to sublicense and distribute your best pictures to anyone that buys it’s products and be allowed to drive revenue (money). Free Stock Photos means photographers loose.

  • Elton T — 7:01 PM on March 29, 2008

    To add to Niklas T’s comments, the “royalty free” language prevents individuals or groups of individuals to claim their images somehow contributed to the overall marketing of Photoshop and related products and demand compensation. This is worth more than stock photo sales.

  • Roger — 8:46 PM on March 29, 2008

    John, kudos for bringing this up… there really should be limits to shrink wrap and other agreements and those writing them should exercise reasonableness…
    I figured someone slipped the “photo contest winner” legalese into the wrong folder, but…
    Having said that, has anyone studied the TOU attached to this and every other Adobe.com page? http://www.adobe.com/misc/copyright.html
    The same things are there, along with indemnification clauses and statements that anyone submitting content certifies they have all the necessary clearances. Wow!
    Hopefully there will be some amendments forthcoming.

  • BillyB — 9:17 PM on March 29, 2008

    This was an informative article which showed the capitalization of the naive by a company that should know better. It would be of a great public service if someone would find other bizarre EULAs that accompany software and post them online so that others can be aware of the risks of not reading the small print that accompanies supposedly harmless software. Thanks in advance.

  • Carl Eisenburge — 9:24 PM on March 29, 2008

    >our legal team is making it
    >a priority to post revised
    >terms
    From what I have been reading all over the web about this fiasco, it is Adobe’s Legal Team that caused this mess in the first place. And they are going to let them take charge of the Back Peddled revision? Please remember that lawyers are nothing more than tomorrow’s politicians and we all know what a bunch of low life’s they are. Even with a “Revision”, I doubt I would trust Adobe with my artistic endeavors after this.

  • Greg Smith — 8:09 AM on March 30, 2008

    I’m glad to see Adobe respond so quickly, and apparently, positively. I will be happier still if this subject gets more publicity and public discussion.
    As several correspondents have noted, such terms are the norm – not the exception – for online galleries. This disrespect for intellectual property is spreading and undermining the one area in which the U.S. leads world markets.
    We need to help all understand that intellectual property has value. And we need to make sure the creators of that property share in that value.
    Otherwise, you will see more than photographers out of work.

  • Jules — 1:50 PM on March 30, 2008

    Adobe is a great company and does many things right but over the past year there have been a number of troubling things that have come up – the “send to kinko’s” button, the 2O9 issue and now this.

  • interested — 4:44 PM on March 30, 2008

    Before getting mad at (only) Adobe, people would be well-advised to check the terms of use for various other photos sites. There are similar clauses at kodakgallery, photobucket, and shutterfly, for example.

  • Jeff — 5:13 PM on March 30, 2008

    Carl: Not all of us are “bad.” Especially if we’re YOUR lawyer. But remember who Adobe’s lawyers look out for… and it’s not you.
    Niklas: Your read-through is quite generous. However, Adobe doesn’t need ANY of those rights to be able to provide the services they’re providing. They DO need those rights to be able to take what’s posted and use it in any other way than the artist intends.
    While I don’t like the ToU, they’re pretty common. I’m surprised that they’re even taking another pass at it. Always remember that you don’t have to use their service and you could always create your own. :)
    I’ll be interested to see what the revised version says.

  • Niklas B — 3:04 AM on March 31, 2008

    Jeff, please tell me how Adobe would avoid copyright infringement without any of those clauses.

  • Carly — 3:29 AM on March 31, 2008

    I think that what’s missing from the ToU is a clause forbidding Adobe from using users’ images for its own commercial purposes, although an ‘opt-in’ checkbox to make images public would be useful to some.

  • Adam — 8:58 AM on March 31, 2008

    I imagine this service is for people wanting to edit pictures of their children, pets and vacation shot quickly, not anyone seriously involved in photography, even enthusiasts. If people have copyrighted material they should be using their own copy of Photoshop. I still agree though that these terms of use are ridiculous. I wouldn’t want my images, even vacation shots to appear on Adobe materials, etc.
    Adam

  • Niklas B — 10:58 AM on March 31, 2008

    Adam wrote:
    If people have copyrighted material they should be using their own copy of Photoshop.
    You automatically get full copyright protection for every image you take the moment you take it, for every graphics you draw the moment you draw it, and so on. There are no such thing as “copyright-less images” unless they have a specific license attached that explicitly remove the copyright.

  • M Rabblebabble — 6:16 PM on March 31, 2008

    Niklas, true, there are no copyright-less images. But you only hold the copyright until you give up your right and / or assign it to someone else (intentionally or inadvertently)- which is what Adobe is trying to get you to do de facto by agreeing to these offensive terms.
    And just because other photo-hosting sites use the same or similar terms doesn’t make it any better. It only means we should be hollering at them too!

  • Niklas B — 2:44 AM on April 02, 2008

    M Rabblebabble wrote: [...] which is what Adobe is trying to get you to do de facto by agreeing to these offensive terms.
    What about the first words found above: Adobe does not claim ownership of Your Content.
    Do they count for nothing?

  • Jake — 9:46 PM on April 02, 2008

    I agree with Roger. This is offensive : “Adobe does not claim ownership of Your Content.” Really. You don’t need legal ownership when the license is so broad it would allow you to stick your corporate hand up my arse. Probably drafted by some douchebag from Wilson Sonsini. Nevertheless, the we don’t know what are lawyers are doing is really lame.

  • Andre — 3:14 PM on April 03, 2008

    I just can’t believe that anyone in a right mind can produce such TOS agreement. Would be simpler just print F – U. Soon they’ll probably hire more legal guys to do just that.

  • Jeff — 7:19 AM on April 05, 2008

    Niklas:
    Adobe doesn’t need you to grant them any rights in or to your workproduct if they’re merely serving it up to you. If they had a REALLY conservative lawyer, they MIGHT want to say that you’re granting them the limited right to host your work and provide it back to you. But this would be unnecessary and only the work of an overly cautious legal team.
    The rights Adobe’s asking you to give them allows Adobe to take your work and use it for things that YOU are probably not intending (like advertising the quality of their products or services by showing off the things that their customers can do with the product).

  • Jon — 9:36 AM on April 13, 2008

    Is there any update on this? It doesn’t take long to revise a license.
    [I guess you overlooked this link, found in the post on which you just commented. --J.]
    PS: I love how people jump on blaming the lawyers . . . always an easy target. The lawyers may or may not have messed this up. They may have done just what Adobe asked. ADOBE is responsible for its web site content, not its lawyers!

  • Chelsea — 12:01 PM on April 13, 2008

    I am 12 and I wanna use Photoshop but I won’t use it to remove red-eyes from birthday party pics……..
    I really want to use it for Picture-Editing graphics etc. My question is will a 12 year old be able to understand its functions and uses?

  • Jon — 6:15 PM on April 13, 2008

    OK here’s why it’s confusing, to say the least. If you go to the “Terms of Use” link in your original post (https://www.photoshop.com/express/terms.html), it still contains this language, and it says important changes are marked in red, which indeed they are though not below, but those changes do not fix what was complained about:
    Adobe does not claim ownership of Your Content. However, with respect to Your Content that you submit or make available for inclusion on publicly accessible areas of the Services, and unless otherwise specifically agreed in any Additional Terms that might accompany individual services (such as Photoshop.com/Express), you grant Adobe a worldwide, royalty-free, nonexclusive, perpetual, irrevocable, and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other Materials or works in any format or medium now known or later developed.
    Then there’s this:
    https://www.photoshop.com/express/pxterms.html
    That page says:
    Adobe.com Terms of Use
    Effective April 10, 2008
    You can find the current Adobe.com Terms of Use at: https://www.photoshop.com/express/terms_old.html
    [which is marked "old" but the text lining to it says those are the "current Adobe.com Terms of Use"].
    Then there’s this that you linked to:
    https://www.photoshop.com/express/pxterms.html
    which isn’t even the same document – the license isn’t in section 8 any more, however changes are clearly there. Then this links to “additional” terms:
    Adobe Photoshop Express Additional Terms of Use
    Effective April 10, 2008
    You can find the current Adobe Photoshop Express Additional Terms of Use at: https://www.photoshop.com/express/pxterms_old.html
    which also is marked “old” but this text also says these are the current terms of use.
    I’ll stop there, I think that’s enough versions to cite to.
    So don’t get frustrated with us users if we can’t sort through Adobe’s mish mash of TOS sites.

  • lori — 12:54 PM on April 15, 2008

    AND, what about this new paragraph in the TOS:
    b. By Other Users
    You hereby grant Other Users a worldwide (because the internet is global), royalty-free (meaning that Other Users do not owe you any money), nonexclusive (meaning you are free to license Your Content to others) license to view, download, print, distribute, publicly perform and publicly display Your Shared Content subject to the limitations in Section 7. If you do not wish to grant these rights in Your Shared Content then do not share Your Content with Other Users. While you have the ability to remove Your Content from the service and/or the public areas within the Service and thus prevent future licenses from being granted, you acknowledge and agree that once Your Shared Content has been shared, Adobe can neither monitor nor control what Other Users do with it.
    Then to solidify it, Adobe grants the same world-wide, non-exclusive, royalty-free license, (but with a few conditions this time):
    7. Use of Shared Content
    Section 5 (a) of the General Terms shall continue to apply to Adobe Materials. With respect to User Content, however, Section 5 (a) of the General Terms is hereby replaced with the following:
    Adobe grants you a worldwide, royalty-free, nonexclusive license to view, download, print, distribute, publicly perform and publicly display content shared by Other Users with you via the Service or that Other Users make publicly available via the Service (“Shared Content”), subject to the following conditions:
    1. Your rights granted by this Section are limited to your personal, informational, non-commercial and, in the case of a business, internal purposes only;
    2. You may not sell, rent, lease or license the Shared Content to others;
    3. You may not modify or alter the Shared Content;
    4. You may not remove any text, copyright or other proprietary notices contained in the Shared Content; and
    5. When you embed Shared Content on a web page, you agree that you will include a prominent link back to the Service from that page.
    I took a look at the TOS of nine other top photo sharing sites; eight of them fully protect the copyright of material uploaded to the site, some with very stringent warnings; only Kodak’s easyshare web gallery states that other users may print your photos or add them to their own galleries.
    Anyone who uses Photoshop Express and makes their galleries public is crazy. I realize that we can’t stop people from stealing images posted on the internet, but to actually give them a license to publicly display the photos? You’d have no recourse if someone were to, say display a photo of your child in an inappropriate manner.

  • Pam — 10:59 AM on June 08, 2008

    THUMBS DOWN ADOBE!
    What are they thinking here? They are slapping us all in the face! I am totally appalled at this and WILL NOT sign up for this travesty nor will I advise ANYONE to do so.
    They SO need to COMPLETELY heal this tremendous bite to the hand that feeds them by simply ‘setting the standard’ that other sites should follow by protecting TO THE FULLEST…photographers rights!
    I have been a loyal advocate of Adobe till now.

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