Vivid Sydney’s Facebook page has already seen an update. Read at the bottom of the article.

Vivid Sydney is an annually run event by Destination NSW used to promote the arts and culture scene throughout Sydney with a splash of brilliantly coloured light displays over buildings, the Opera House and the Sydney Harbour Bridge, with accompanying art displays, photographic exhibits and lots of other exciting things to do. Each year, 100s and 1000s of photographs of Sydney shining gloriously, in brilliant colour, filter through social media.

But what exactly are you giving up if you post them in the wrong place, such as Vivid Sydney’s own Facebook page?

Vivid Sydney has a tainted history for photographers. In 2013, the Reportage Festival, part of Vivid Sydney which features images by photojournalists who have risked their lives to capture some of the toughest moments in history, was heavily censored by Destination NSW. The claims were that the images were too graphic and “too distressing for young children and family viewing.” While, yes, some images were confronting, images censored included scenes of burnt out bushland — yes, purely the blackened remains of trees — post Black Saturday in Victoria 2009, a pregnant belly and a man carrying a dead fish. Images of grief, of riots, of scars and war torn lands were also featured, but were in no way graphic that would scar, but merely spur conversation. [View more images censored here.] Regardless, these images were removed from public display.

This image was censored by Destination NSW afer being deemed too distressing for children and families.

This image was censored by Destination NSW afer being deemed too distressing for children and families. Image source: Reportage.com.au.

Also, in 2013, at a closed exhibit at the Cleland Bond Building at The Rocks, which was part of the Vivid Sydney festival, a number of photographs were literally censored with requests that the genitals in photographs be covered by tape. This was despite there being clear warnings on the doors about the exhibit containing nudity. The treatment of photographers was so poor throughout the festival that the Reportage Festival has withdrawn alliance with Vivid Sydney, meaning severe funding cuts and the festival not being able to run this year.

You would think they would have learned from last year. The amount of bad press throughout Australian press, international news sites, and social media alone must have been damaging for them. One would think that, as a festival promoting the Arts and Culture of Australia, they would support the rights of artists and photographers alike.

 

What Rights Are You Giving Up Purely By Posting On Their Facebook Page?

We are left questioning this after being tipped off to some very questionable practices on the Vivid Sydney Facebook Page. Turns out they have some T&C in regards to posting to their page hidden away. The screenshot to the side shows the Vivid Sydney Facebook page as of 2.30am AEST on the 24/5/2014. It shows nothing out the ordinary. Just a standard page promoting the event.

Vivid Sydney's Facebook Page

Vivid Sydney’s Facebook Page. Nothing out the ordinary?

What happens when you click the “About” link? Well, again, nothing too out the ordinary. Contact details, a brief description of what the festival is all about, dates and a website. But, wait? What’s that “See More…”?

Vivid Sydney's About Page

Vivid Sydney’s About Page

If you click on that “See More…” link, you find a hidden treasure trove of T&C:

Vivid Sydney's full Facebook T&C

Vivid Sydney’s full Facebook T&C

The T&C are pretty straight forward in regards to posting comments. I mean, sure, you abuse someone or post spam or repeatedly post the same thing, it’s going to be deleted. But below that, right at the bottom, is what is concerning:

Posting photos to our wall:
Destination NSW does NOT claim ANY ownership rights in photos that you post on our ‘wall’. However, by posting a photo on our wall you hereby grant to Destination NSW and Vivid Sydney a non-exclusive, royalty-free, worldwide, revocable, non-transferable, perpetual licence to use, modify, delete from, add to, publicly display and/or reproduce, your photo, including without limitation in any online media formats and through any social media channels, pages or accounts.

Sure, they state they do not claim any ownership rights in your photos, but it’s what follows after that is concerning. By posting any image to their wall, you’re giving them every other right to do with the image as they see fit. Your images might not be used to just promote Vivid Sydney, but for anything by Destination NSW wants, in any way they want, forever, for free.

You could argue that this is no different to how Facebook works already, but that’s not the case. Facebook’s Terms purely request the right to publish your image, i.e. on someone else’s news feed as would be the case when you post the image. They aren’t using it for advertising, they’re just requiring the rights to show it to your friends and followers (and theirs if they correctly share the image).

There is a huge dark cloud over the legalities of this set of terms and conditions, being that they are deeply buried and not easily found, and assuming rights to Intellectual Property that are in addition to Facebook’s Terms.

Why do these terms even need to be stated? Supposedly, if they just wanted to ‘Share’ an image posted on their wall, Facebook provides a means for them to do so while giving the photographer due credit and within the terms that Facebook users abide by. There is no reason to state additional terms if images posted on Facebook are used in accordance to the Terms that Destination NSW agree to while using Facebook.

Sure, Facebook includes this term in regards to “Protecting Other People’s Rights”:

If you collect information from users, you will: obtain their consent, make it clear you (and not Facebook) are the one collecting their information, and post a privacy policy explaining what information you collect and how you will use it.

It could be argued that they are collecting information and have posted a privacy policy, but is it clear and do they obtain consent? Ignoring the ambiguity of how exactly those images are going to be appropriated and used, they are not clear as they are hidden away from users nor have they obtained consent. Posting on a page is no different to writing on a friend’s wall. Posting on a wall is giving Facebook consent to use the image as per Facebook’s Terms, but that is all. There is no check box to confirm you agree with any additional rules or terms like a Facebook App. It is merely using Facebook.

It is in my opinion that the very practice that Destination NSW is performing here is AGAINST Facebook’s Terms to appropriate Intellectual Property in such a manner. If it was happening through an App (such as apps that Canon Australia, for example, have used correctly in the past with competitions where photos were submitted through Facebook with Terms and Conditions agreed to upon upload) it would be acceptable and within the ‘rules.’ Photographers would be posting with full awareness of what rights they were giving up by posting an image. But to take content posted on a public page I do believe to be against Facebook’s Terms and definitely not in the best interests of photographers.

What are your thoughts on this?

We freely invite Destination NSW to contact us to further clarify these additional Terms and what exactly they intend to do with images they collect.

 

*UPDATE*

As of 5:40pm AEST on 24/5/2014, there has been a change in the additional Terms and Conditions to posting on Vivid Sydney’s page. We like to think it is in response to VOTogs flagging the issue publicly, certainly it seems to have come about after this article was posted onto their Facebook wall.  The changes can be seen in the screenshot below:

Vivid Sydney's Updated Terms

Vivid Sydney’s Updated Terms

They have changed the Terms to read:

Posting photos to our wall:
Destination NSW does not claim any ownership rights in photos/video that you post on our ‘wall’. However, by posting a photo/video on our wall you allow Destination NSW, a licence free of charge to use the photo/video for marketing and promotional purposes on Destination NSW’s social media accounts and digital platforms. A credit will be provided.

This is better, as it is now at least providing a credit to the photographer, although it is still hidden away in the bottom of the About page and it is still appropriating the right to use the image for all marketing and promotional purposes by Destination NSW via social media and digital platforms without payment.

This change has come remarkably quickly, especially on a Saturday, especially for a government department. It leaves us wondering why an organisation that has gone through what it has in the past twelve months after the aforementioned negative publicity would not get such terms right in the first place, nor why they even require said terms, again, if they only plan on using them via “Shares” on Facebook. It’s also a shame that further bad publicity is required to force such change to protect photographers’ rights.

The question is left as to if it is enough of a change to protect photographers’ rights?


3 thoughts on “Updated: Vividly Stealing Rights: Is Destination NSW Abusing Photographers Again?

  1. They should’ve left it as it was. One word in the original was enough for the photographers to grab their rights back. “Revocable”. Meaning, that photographers can revoke said licence at any time. If they had’ve used “irrevocable”, then it would be a major problem.

    • Very true. It’s one reason I am still not a fan of the revised conditions. On one hand, there’s now a credit; on the other, “revocable” is not included in the terms (though, they are in Facebook’s terms). — Peter

  2. These exact terms are used on nearly all tourism pages, including the widely popular Australia.com page. I recently saw that they took the extraordinary step of printing 3000 images that had been shared to their page, and using them to decorate a wall in their Tourism Australia office.

Leave a Reply