A word of warning to YouTubers and photographers alike

I recently ran across a video created by a YouTube content creator regarding a third-party app that she discovered was displaying, distributing, and monetizing her videos without permission:

According to the video, the content creator, Ancient Whispers ASMR, took initial steps to look into use of a third-party app called Tingles (owned by Tingles, Inc.) that claimed to provide its users with easy access to ASMR videos (a growing and popular category of videos that has built a community of artists and viewers). When first accessing the Tingles app as a creator, Ancient Whispers ASMR was asked to allow her videos from YouTube to be “made available” on the Tingles app. The authorization further included checking a box reading “make my videos available on Tingles.” After proceeding through additional pop-ups allowing Tingles to view her YouTube videos, account, and activity, Ancient Whispers ASMR was presented with an “Artist Partnership Agreement” which detailed the rights Tingles required the artists to grant to partner with it.

Ancient Whispers ASMR claims that she didn’t sign the Artist Partnership Agreement, although she cannot remember specifically why not. She claims that she simply “did not like it.” Without knowing any other details, I’m pretty sure that she didn’t like it because of this paragraph alone:

3. Content Use. It is understood and agreed that the Company has the right to use or not use the original content for any purpose. The Company has the right to use, reproduce, reuse, alter, modify, edit, or change the content as it sees fit and for use exclusively on Tingles platform. Upon Contractor’s request, modified, edited, or changed content will be removed from the Tingles platform.

It is easy for people to glaze over when reading through legal documents like this Artist Partnership Agreement, but I hope that it is obvious why this tiny paragraph should have raised a large red flag for any content creator asked to agree to it. Not only does it use vague language such as “use,” but also expands that undefined use “for any purpose.” The small paragraph then attempts to demand exclusivity of the content. However, most egregious to artists creating videos, photographs, or any other sort of content would be granting the rights for the Company to “alter, modify, edit, or change the content as it sees fit” for the undefined and unlimited “use” in any manner.


I have spoken with enough artists to understand the time, effort, personal cost, blood, sweat, and tears that it takes to create the videos and images that they share with the world. I can’t imagine any of them being okay allowing others to make sweeping changes to that content for some unknown or undefined use. But signing this Tingles contract would allow just that. This is a classic rights-grab where the Tingles is demanding a much larger universe of rights than they would ever need to satisfy their core stated purpose.

This blog post is not meant to speak to the controversy between Ancient Whispers and Tingles. Without knowing more, I cannot know whether those initial click-through agreements alone would allow Tingles to display and distribute works uploaded to YouTube. It is certainly possible, and something that creators must be aware of as they navigate these kinds of click-through interactions. Instead, I wanted to provide a good example of a creator being aware enough about the details of a contract that she was not willing to agree to its terms. I also wanted to highlight how important it is to read and understand the terms of any contracts you are entering, especially when it involves granting any rights to your work. It is up to you to make sure that the licenses you enter are properly tailored by either negotiating better terms or walking away if the other side won’t budge. Failing to do so can be devastating — here a signing YouTuber would give up almost all exclusive control of the creative and managerial control of her library of works (possibly even previously uploaded videos, as the contract as shown in the video does not restrict the specified content to future uploaded videos). If you don’t feel comfortable reading, translating, or negotiating contractual terms, hire an attorney to do it for you. It’s a small price to pay for assuring continued control over your work.

Finally, I wanted this blog post to serve as an illustration of the power of registering your works with the Copyright Office. I have not met many YouTube content creators who routinely protect their work through registration, as they usually assume that the mere creation of the work is sufficient for the protection they need. On a base level, yes, some protection exists. But here, had Ancient Whispers ASMR or any of the other artists timely registered each of their videos through the Copyright Office, Tingles would have faced significantly more liability for any use beyond the terms of the licenses granted from the artists. Being able to access statutory damages for each work and recovery of your legal fees and costs is a strong deterrent against any infringing activity. I have found that kind of pressure, rather than a news-cycle of bad press from a scathing video or payment of a license fee and profits is required to create real change in the companies that push these rights-grabbing contracts on unsuspecting artists.

After all, if people are equipped to identify and fight back against these kinds of contracts, and have the ability to strongly deter companies from exceeding licenses first and apologizing later, the less it will happen on an industry-wide basis. That would be good for everybody.

The Future of the Watermark Wars

Sometimes it can be a difficult decision for a photographer -- do I include a watermark on my photographs that is small, out of the way, and doesn't change the image itself?  Or should I blast a large watermark across the whole thing, making it impossible for anybody to use the photograph without my permission?  Or, in some cases, is it worth watermarking at all?

The Computer Vision Foundation published an interesting paper recently discussing the next stage of technology, and how that difficult decision may not make a difference when it comes to how and where to watermark.  In the paper On the Effectiveness of Visible Watermarks, a team of researchers from Google discovered that one of the most common forms of watermarking is not as effective as content creators may believe.  Namely, the semi-transparent logo or notice placed over the main part of an image (commonly used by stock agencies and other large distributors of works) can easily be reviewed, analyzed, and removed from any image entirely.  This is especially true if that watermark is applied consistently to a large number of works.

Interestingly, even traditional variation in watermarking did not change the results of Google's review, as "randomly changing the position of the watermark across the collection does not prevent such an attack from detecting and removing the watermark, nor do random changes in the watermark’s opacity or color." 

The only way to effectively stop this type of large-scale analysis and removal of watermarking was, Google discovered, to use "geometric variations," or small, almost imperceptible random variations to applied watermarks which keep the attacker from being able to correctly identify and process out the watermarking.  The result of those added variations are remnants of the original watermark left visible on the source photograph, even after repeated attempts to remove it.

While a quick read of articles about this process may leave a photographer wondering why Google would ever be showing infringers how to more effectively remove watermarks, it is clear that Google's research is directed towards helping photographers and content creators understand what is possible with today's technology, and providing recommendations as to practices that may help content creators avoid the pitfalls of unjustified confidence in their own protective practices.  In fact, Google optimistically explains that:

We believe our work can inspire development of advanced watermarking techniques for the digital photography and stock image industries.

Indeed.  Let's keep our fingers crossed that the stock agencies, photography software companies, and other entities interested in the protection of rights are paying attention and willing to make these advanced watermarking technologies generally available.

So the decision of how to watermark has a new wrinkle.  The safest bet is to follow the requirements of the Copyright Act.  Place the symbol ©, the year of the first publication of the work, and the name of the owner of the copyright in a place on the work that gives reasonable notice of the claim of copyright.  17 USC 401(b-c).  Whether that covers the image or sits in the bottom right corner is up to you -- and according to Google, may not matter as much as you think it does until more advanced watermarking technology is available.

As for the decision whether to watermark?  It's always a great idea, especially if you have any interest in protecting the rights to your work.  After all, not only does it make it less likely that your work will be infringed, but if that watermark is removed by an infringer you may be entitled to additional recovery on top of any copyright infringement damages.  It's an easy and straightforward way to give you a better ability to defend your rights.

Facebook, Metadata, and Hope

One of the biggest challenges to professional photographers is the delicate balance between promoting work to the public while also maintaining control over those works.  And one of the most frustrating issues has been the automatic removal of metadata by Facebook whenever photographs are uploaded to their site.

As of 2013, it was reported that more than 250 billion photographs had been uploaded to Facebook's servers, and that number has certainly grown since.  The point is, Facebook is undoubtedly a central hub for the display and sharing of photographs in our modern world and should be a powerful tool for professional photographers to market their work or gain public exposure.  Yet for the cautious photographer, it's not.  Instead, posting any photographs to Facebook leads to the removal of any metadata included with those photographs and a limitation on the photographer's ability to provide notice to downstream users that the work is protected and not to be used. 

But as PetaPixel reported this weekend, a German photographer successfully challenged this practice:

Berlin photographer Rainer Steußloff, filed a lawsuit against Facebook for automatically stripping EXIF data (specifically the IPTC standard) from images when they’re uploaded to the social network.
Steußloff argued that this practice violates German Copyright Law, and therefore Facebook is bound to stop doing it. In a ruling on February 9th, the court agreed; and since it’s been six months and Facebook has not challenged the ruling, the judgement is considered final.

The obvious asterisk here is that this holding comes from a German court and based on German copyright law, and so does not provide any direct precedent for U.S. Copyright law.  But it does provide a certain amount of hope that Facebook will reconsider its practices regarding maintaining metadata.   As Rainer Steußloff explained, it seems unlikely that Facebook would institute a separate metadata mechanism only for German users, especially when this issue could easily arise in other countries. 

I can see benefits to removing metadata such as limiting unintentional exposure of location or other information that can automatically populate from the camera -- especially when the user is not aware that they are providing the data.  That said, these concerns would be mitigated if Facebook at least gave its users the choice to include metadata, even if the default setting removed it.  Even keeping only the copyright ownership fields of the photographs and giving professional photographers a choice to include their copyright notices on their work would go a long way in making the Facebook platform a more valuable -- and secure -- tool for professional photographers.

Welcome to Pixel IP

Thanks for visiting my new website! My goal here is to provide blog updates weekly, focused on current issues in copyright law, photography, and other topics that relate to my goals for this business in the future.  If you have any suggestions for blog topics, please email them to me at evan@pixeliplaw.com.  While I can't guarantee that I will always use them, it is always great to see what readers are interested in learning about.

Again, thanks for coming along with me on this new adventure. 


Photograph provided by Mike Boatman