Amtrak Thinks 'Sharing' Your Photo Means Giving Up Any And All Rights In Perpetuity

from the you-spelled-'taking'-wrong dept

Tue, Aug 5th 2014 9:12am — Tim Cushing

Sharing is a universal concept. Or so you would think. But even a three year-old has a better grasp on the concept of sharing than Amtrak does.

An Amtrak passenger uploaded a photo taken from an Amtrak car to Instagram and tagged the company. The company's Twitter account responded, asking the passenger if he'd mind "sharing" the photo with Amtrak.

@nruibal We love this pic! Mind sharing with us? Click this link. http://t.co/w9uGua3JXE
— Amtrak (@Amtrak) July 28, 2014

Shortly after that, the photographer responded with this:

@Amtrak btw, I don't mind *giving* you this photo, but you shouldn't use the word "share" when you mean "permanently assign copyright"
— Nathan Ruibal (@nruibal) July 30, 2014

If you can't read it, it says:

btw, I don't mind *giving* you this photo, but you shouldn't use the word "share" when you mean "permanently assign copyright"

You see, when Amtrak says "share," it actually means "take your stuff and never give it back." When this Twitter user "shared" this with Amtrak (via social media management platform Percolate/Fanbranded), he gave up everything.

Here's the Terms and Agreement verbiage Amtrak translates as "sharing."

This Photograph Copyright Assignment Agreement ("Agreement") is entered into by and between the National Railroad Passenger Corporation ("Amtrak"), a corporation organized under 49 U.S.C. §24101 et seq. and the laws of the District of Columbia, with its principal office located at 60 Massachusetts Avenue, N.E, Washington, DC 20002 and Photographer for the assignment of the copyright in the photograph(s) ("Photographs"), which are attached to this Agreement as Exhibit I.

Grant of Rights

Photographer does hereby grant, assign and transfer all right, title and interest in the Photographs to Amtrak and any registrations and copyright applications relating thereto, including any renewals and extensions thereof. Photographer agrees to execute all papers and to perform such other proper acts, as Amtrak may deem necessary or desirable to secure for Amtrak the rights herein granted, assigned and/or transferred.

Attribution

Amtrak may, but is not required to, identify and credit Photographer and Amtrak may use or authorize the use of Photographer’s name, likeness or pertinent biographical material in connection with the advertising and promotion of any work containing all or part of the Photographs.

Entire Agreement, Modifications and Governing Law

This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes any prior discussion or agreements between them relating thereto. No modification or amendment to this Agreement shall be valid unless in writing and signed by both parties. This Agreement shall be governed by and construed in accordance with the substantive laws, but not the laws of conflicts, of the District of Columbia.

The short version:

Sharing = giving away your photo for forever for exploitation solely by Amtrak, which may or may not choose to credit you for your creation and either way, you can't really demand attribution because it's no longer your photo, is it?

Is it forgivable? In a word, NO. While we can expect most corporate entities to have their way with user-generated content, the most anyone should ask for is non-exclusive rights. Amtrak has no right to demand this and everyone greeted with this offer to "share" should turn it down with a hearty, "go screw yourself."

But this isn't Amtrak's only dip into re-purposing the creations of others into rolling PR platforms (literally). A few months ago, it sent out the call to aspiring writers, offering finalists a free ticket to the place of their choosing provided they rode there in an Amtrak rail car and wrote something suitably inspiring.

Every aspiring writer who thought viewing up to $900 of the country by rail would beat back writer's block signed up, forcing Amtrak to end its open call for submissions much earlier than it planned to. Enthusiasm outweighed common sense as every submission (over 11,000 of them) became the property of Amtrak, subject to a whole host of stipulations.

In submitting an Application, Applicant hereby grants Sponsor the absolute, worldwide, and irrevocable right to use, modify, publish, publicly display, distribute, and copy Applicant’s Application, in whole or in part, for any purpose, including, but not limited to, advertising and marketing, and to sublicense such rights to any third parties. In addition, Applicant hereby represents that he/she has obtained the necessary rights from any persons identified in the Application (if any persons are minors, then the written consent of and grant from the minor’s parent or legal guardian); and, Applicant grants Sponsor the absolute, worldwide, and irrevocable right to use, modify, publish, publicly display, distribute, and copy the name, image, and/or likeness of Applicant and the names of any such persons identified in the Application for any purpose, including, but not limited to, advertising and marketing.

If Amtrak was looking for a bunch of free marketing material written by a cast of thousands, it found it. And then, it stripped away any rights the authors had to their creations, even if they weren't one of the 24 finalists. Amtrak isn't looking for talented, original writers. It's looking for some really cheap spokespeople.

The Amtrak Residency’s terms and conditions, which prescribe a search for publicists, not the next great American novelist. Applications and writing samples that pass an initial evaluation will then be judged by a panel “based on the degree to which the Applicant would function as an effective spokesperson/endorser of [the] Amtrak brand.”

Amtrak really needs a refresher course on sharing. Companies can be partners with creators but far too often, they seek complete control. Notably, everything defining this stripping of the creators' rights happens in the fine print. If you assume the worst about Terms and Conditions, you'll rarely be disappointed. But it takes a certain blend of audacity and forced cheerfulness to use the word "share" to describe what's going on here.

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Filed Under: copyright, promotions, sharing
Companies: amtrak

41 Comments

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Violynne (profile), 5 Aug 2014 @ 7:31am

"But even a three year-old has a better grasp on the concept of sharing than Amtrak does."
They sure do, and the lesson is usually given as "Susie, you share your Barbie or you'll get a timeout!"

And since we all know how "timeouts" aren't really punishments, they don't learn their lesson effectively and grow up to be copyright maximalists.

Tim, have you ever read the ToS of other sites that allows users to upload photos?

This article seems to imply they've not been read. Go read a few, then come back and see what we've got here.

When you throw out the new arbitration clauses these ToS contain, it should send a massively cold chill down your spine.
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Anonymous Coward, 5 Aug 2014 @ 9:22am

I'm generally pro-rail transit
But this is just ridiculous
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Anonymous Coward, 5 Aug 2014 @ 9:33am

what? a corporation screwing everybody who deals with it? get out of here.

my dad's first job out of college was in 1916 with a major international corporation, and he was so disgusted - even way back then - that after the great war was over he refused to use his hard-earned engineering degree and went into small business the rest of his productive life.

i came along much later and spent a commercial lifetime working as a contractor for many corporations. my dad loved them compared to how i feel about corporations.
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Arthur (profile), 5 Aug 2014 @ 9:35am

Amtrak app
I was interested in using Amtrak for some travel and thought I'd download their app for schedules, tickets, etc.

I started to install and read their required access and permissions - and immediately cancelled the download! They wanted permissions for extensive control of my phone - including, get this, permission to send messages to all my contacts in my name without my approval!
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Kaemaril (profile), 5 Aug 2014 @ 9:38am

Re:
I've read a few. Generally, they say by agreeing to host the photo you give them a permanent non-exclusive right to reproduce your photo as they see fit, blah blah.

I've yet to see any which flat out say "You agree to transfer your copyright", which is what the Amtrak terms are doing.

But maybe I've been looking in the wrong places.
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Michael, 5 Aug 2014 @ 9:40am

Re:
have you ever read the ToS of other sites that allows users to upload photos?

Can you be a bit more specific about which sites you think are doing something similar? Keep in mind that Amtrak was not offering a service like many sites are, they were asking for marketing content submissions.
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Anonymous Coward, 5 Aug 2014 @ 9:48am

@nruibal We love this pic! Mind sharing with us? Click this link. http://t.co/w9uGua3JXE
— Amtrak (@Amtrak) July 28, 2014

Is this a misleading statement , Is it binding ?
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Anonymous Coward, 5 Aug 2014 @ 9:52am

Re: Amtrak app
So they're lying then

http://www.amtrak.com/privacy-policy

Section 2.9 [Amtrak mobile applications]

"If an application has access to additional information on your phone, such as contacts or calendars, we do not automatically collect that information. This access is to allow you to interact with your information from within the Amtrak application."
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John Fenderson (profile), 5 Aug 2014 @ 9:55am

Re:
I've read tons of them. All of the ones I've read grant the site a non-exclusive license, not a copyright assignment.
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GMacGuffin (profile), 5 Aug 2014 @ 9:55am

It's more an ambush than an assignment of copyright
I found a different "share" tweet and it takes you straight to a page with the photo, with the ToU on the right (like the story). Meaning, it's not even a click-wrap agreement requiring you to affirmatevly click a radio button indicating assent. It's an ambush. Oh, yeah, and...

17 USC §204: (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.
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Anonymous Coward, 5 Aug 2014 @ 9:59am

Well, you simply do not understand sharing.
Of course I would share with them my photo! As soon, as they share with me their $1000.
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John Nolin, 5 Aug 2014 @ 10:09am

Amtrak PR
Certainly gathering minimal cost PR is less than maintaining and/or refurbishing the rail system. My retired parents took the complete around the country Amtrak tour last Spring. My grandmother's second husband had been an actual railroad boiler maker and had always encouraged it.
Unfortunately the experience was less than nostalgic. Multiple mechanical failures, schedule issues, and 2-3 hour delays, had them spending far too much time looking at adjacent freight rather than scenic vistas.

Provide a good travel experience and the matching PR will produce itself without having to ask for it.
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Anonymous Coward, 5 Aug 2014 @ 10:12am

The second is typical for writing contests and is a valid contract.
However in the first the is no consideration and likely no valid contract likely no valid assignment.
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Kaemaril (profile), 5 Aug 2014 @ 10:12am

Re: It's more an ambush than an assignment of copyright
To which, they presumably point to their agreement ...

"Photographer agrees to execute all papers and to perform such other proper acts, as Amtrak may deem necessary or desirable to secure for Amtrak the rights herein granted, assigned and/or transferred. "

And say, "Right, we require you to transfer your copyright in writing, as agreed."

At which point, hopefully, everyone would laugh in their face and tell them they'd see them in court, but there could be some people out there intimidated enough by the legalese ...
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John Fenderson (profile), 5 Aug 2014 @ 10:16am

Re: Amtrak PR
Yeah, just like air travel, train travel long ago stopped being a wonderful experience and is now purely functional (or non-functional, as the case may be).

Although for my money, the train is still a far more enjoyable experience than the airplane. The TSA hasn't totally ruined train travel. Yet.
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Whatever (profile), 5 Aug 2014 @ 10:18am

Re:
I agree, these look like contest terms. Either they just used the terms without consideration, or they just think it's a good way to get free content.
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wayout, 5 Aug 2014 @ 10:22am

Guys, you can only transfer copyright via a "Signed document". The copyright office doesn't recognize the typical rights transfers companies online try to use.
http://copyright.gov/circs/circ1.pdf
"Any or all of the copyright owner’s exclusive rights or any
subdivision of those rights may be transferred, but the trans
fer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or
such owner’s duly authorized agent."
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Quinn Wilde, 5 Aug 2014 @ 10:27am

One Big Misunderstanding
Wow. Maybe this is what the content industries think we mean by 'file sharing'.

Perhaps the last 15 years of regressive and punitive copyright policies have been the result of one collosal misunderstanding.

It's OK, MPAA! It's OK, RIAA! You can come back into the negotiation room now! We don't want to *own* your stuff!

We just want to be able to use it whenever we like, in a way (and for an amount) that doesen't make the experience seem like indentured servitude.
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Anonymous Coward, 5 Aug 2014 @ 10:28am

Just a theory...
Perhaps the PR person in charge of their Twitter account that sent the tweet was not made aware of what was actually in the agreement. Likewise, the lawyers that wrote that agreement, most likely have absolutely no training in marketing or public relations and are trained to try to protect the company from any and all possible legal challenges that could arise so naturally they write agreements to request way more rights than they will ever need. So naturally a little cross-training of the two departments would likely have avoided the entire situation.
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GMacGuffin (profile), 5 Aug 2014 @ 10:38am

Re: Re: It's more an ambush than an assignment of copyright
That would be a sight. Amtrak tries to enforce unenforceable browse-wrap agreement by suing in equity to compel a party to execute an assignment of copyright. That would go over about as well in court as it would online. Counsel should be fired for even drafting the clauses.
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Mike Masnick (profile), 5 Aug 2014 @ 10:48am

Re:
Tim, have you ever read the ToS of other sites that allows users to upload photos?

Most require a non-exclusive perpetual *license*. That's different than transferring the copyright.
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GMacGuffin (profile), 5 Aug 2014 @ 10:50am

Re: Just a theory...
...the lawyers that wrote that agreement, most likely have absolutely no training in marketing or public relations and are trained to try to protect the company from any and all possible legal challenges that could arise so naturally they write agreements to request way more rights than they will ever need.

Any lawyer who would demand a full assignment of copyright in this circumstance (and especially in this manner) either does not know what they are doing, or is a bad person, or both.
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Varsil, 5 Aug 2014 @ 11:09am

Basic contract law
To get a valid contract you need consideration. I'm not sure what consideration Amtrak is offering.

To put this into Full Metal Jacket terms, you can't legally fuck him in the a-- without giving him a reacharound in return.
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Adam (profile), 5 Aug 2014 @ 11:24am

Re: Amtrak app
Ah, but that's where you're wrong. When you accept the ToS of the app, you are giving your approval. Maybe you meant "send...without my review"?
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John Cressman, 5 Aug 2014 @ 11:33am

Share please...
Would anyone like to "share" a million dollars with me?

Somehow, the whole concept of "sharing" seems to be more mutually beneficial than AmSteal... I mean... AmTrak's view.
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John Fenderson (profile), 5 Aug 2014 @ 12:37pm

Re: Re: Amtrak app
How does that mean they're lying? They're saying "if an application has access" (which that application does, as evidenced by the required permission) then the app will only use that access in that particular way.

That might be a lie, but nothing presented is indicative of that.
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John Fenderson (profile), 5 Aug 2014 @ 12:38pm

Re: Re: Amtrak app
Legally, yes, you're giving approval. That doesn't mean you're really giving approval, though.
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John Fenderson (profile), 5 Aug 2014 @ 12:40pm

Re:
This was addressed earlier, but I'll recap. The agreement with Amtrak is that you're promising to execute the documentation required for the copyright assignment should they ask you to. So yes, the assignment hasn't technically happened at that point -- but it effectively has as you've contractually bound yourself to executing the copyright assignment.
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Anonymous Coward, 5 Aug 2014 @ 12:43pm

Re: Amtrak app
That is why I use XPrivacy on my rooted Nook.
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Anonymous Coward, 5 Aug 2014 @ 2:00pm

ha, Techdirt just accidentally posted a pro-artist, anti- piracy screed.
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Anonymous Coward, 5 Aug 2014 @ 3:02pm

Re:
Um, are you new here? Techdirt has plenty of articles about how large corporations actively lawyer and contract and litigate in order to abuse the rights and finances of the little guy, whether he's an artist or a customer or supplier or competitor, or any combination thereof. This was no accident.

And it's not piracy when a corporation tries to trick you out of your copyright. That would actually be a literal form of "copyright theft," if it succeeded.
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jdc (profile), 5 Aug 2014 @ 3:31pm

Re: Re: Amtrak app
Not sure if they're lying.

They say they won't automatically collect the information.

The person complaining about the app says that it wants permission to send messages to his contacts in his name without his approval.

I'd say that sending the messages in his name doesn't imply collecting information on his contacts and storing said information on an Amtrak controlled server.
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nasch (profile), 5 Aug 2014 @ 4:02pm

Re: Re: Just a theory...
Any lawyer who would demand a full assignment of copyright in this circumstance (and especially in this manner) either does not know what they are doing, or is a bad person, or both.

Probably the former, as in they are not aware of the circumstances under which the agreement will be used.
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nasch (profile), 5 Aug 2014 @ 4:04pm

Rights
And then, it stripped away any rights the authors had to their creations, even if they weren't one of the 24 finalists.

I see where Amtrak is requiring the author to grant it rights, but not where it is taking any rights away from the author (in the writing contest, not the "sharing" agreement).
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Anonymous Coward, 5 Aug 2014 @ 5:02pm

Re:
"The second is typical for writing contests and is a valid contract."

Are you a lawyer?
Has your assertion been tested in court?
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Anonymous Coward, 5 Aug 2014 @ 5:28pm

Re: Re:
You may be binding yourself, but not by a contract, because I can't see any benefit for the photographer, and without an exchange of (at least notional) value there is no contract.

At most, Amtrak could conceivably get a non-exclusive right to continue using the photograph as they were when the photographer decided to revoke their agreement, or more likely simply avoid paying damages for a copyright violation. (I'm not sure if the browse-wrap "agreement" would be accepted anyway, especially since the terms are not those which an ordinary user would expect.)
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PaulT (profile), 6 Aug 2014 @ 12:55am

Re: Re:
Why not both? The competition terms were probably written with a clause that claimed ownership to get free content, while someone may have subsequently re-used the terms without considering the consequences. I've seen the same clause in many competition T&Cs, presumably to discourage professionals from re-using content and/or to ensure they can use winning entries as promotional material without additional payment.
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PaulT (profile), 6 Aug 2014 @ 1:03am

Re: Re:
"Um, are you new here?"

Nope, just a garden variety troll who attacks a fictional version of this website because they can't conceive of legitimate criticism of their industry.

"And it's not piracy when a corporation tries to trick you out of your copyright. That would actually be a literal form of "copyright theft," if it succeeded"

Ironically, that's the only kind these idiots support. Go to one of the threads where an artist has literally had their copyright robbed by a record label if you want to see some anti-artist posting from the troll contingent here. It's breathtaking.
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Anonymous Coward, 6 Aug 2014 @ 7:40am

Re: Re: Re:
https://www.techdirt.com/articles/20140802/07535628090/copyright-office-rejected-my-attempt-to-copyr ight-tweet.shtml#c184
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steve, 6 Aug 2014 @ 11:32am

three observations
1. Just clicking that link doesn't assign copyright - the Amtrak page that the Twitter user gets by clicking is only a request, and the Twitter user (the photographer) doesn't have to click "agree".

2. Isn't Amtrak already infringing the photographer's copyright by republishing the photo on the page where Amtrak asks for a copyright assignment?

3. How do they verify who they're contracting with? I clicked that link, and got the Amtrak page with the republished photo (not mine) and the link where Amtrak requests a copyright assignment - apparently anyone in the world could click "agree" or "yes" - how does Amtrak verify that the photographer was the one supposedly giving them a copyright assigment?
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nasch (profile), 6 Aug 2014 @ 12:10pm

Re: three observations
Wow, it's even more of a CF than it appears at first.
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