New Hipstmatic’s Terms of Service: Why Companies Can’t Be Your Friend

by Harry on February 12, 2011

A few days ago, Synthetic, developers of Hipstamatic, released a new version of their popular and award winning application. We love Hipstamatic for the quality of the filters provided, it truly is a good app.

The last release of Hipstamatic came together with a new Terms of Service agreement, and some of the users, instead of skipping through it and pressing the “I Agree” button, decided to read it and did not like some of the points contained in the document. To be brief, by accepting the agreement you will give Hipstamatic full rights on the photos you upload to their servers (not those you keep on your iPhone). By full rights, I mean they can – just to make an example – use your hi-res photos and sell them, and you will get nothing.

Here is the interesting bit in the new TOS:

“You grant to Hipstamatic the unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual fully-paid and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, resell, sublicense, display, perform, transmit, publish, broadcast, modify, make derivative works from, retitle, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User Content to which you have contributed, for any purpose whatsoever, in any and all formats; on or through any and all media, software, formula or medium now known or hereafter known; and with any technology or devices now known or hereafter developed and to advertise, market and promote same.”

And again:

“You retain all of your ownership rights in your User Submissions. However, by submitting the User Submissions to Hipstamatic.com, you hereby grant Hipstamatic.com a worldwide, non-exclusive, royalty-free, sublicenseable, and transferable right and license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the Website and Hipstamatic.com’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the Website (and derivative works thereof) in any media now known or hereafter developed.”

Many users were irritated by these bits, also because in order to download the new free pack of filters in Hipstamatic you are forced to agree to the above terms – even though downloading an add-on and giving full rights on your photos to a third party are thankfully usually two very different things.

Synthetic, a bit like it happened with Instagram’s guys, were very fast to answer their users on Facebook, and they did it by writing a sweet sounding – more hippie than hipster –  declaration of love and purity of sentiments that seems to have moved the hearts of some, and enraged others.

“Let me assure you that we have no intention of doing anything evil with your prints ever. We’re really just a group of guys, and good ones at that — there’s six of us now, one recently added. We are not some big faceless megacorp looking to leech all the money we can out of your art. We made Hipstamatic because we love photographs, and our community is our greatest treasure because of the awesome things they’ve done with our app. I promise that we are not out to screw you. We love you guys. :(“

The rest of their post, which you can read on Facebook (thanks to our visitor JonnyGerman for reporting the post in one of his comments), basically states that the “necessary” nasty bits apply only to people uploading photos to their servers. Also, the developers added that they are hearing the feedback of their users and they have now hired “expensive lawyers” to take care of things.

The first criticism against this kind of answer is, hopefully, obvious. All the babbling about “we are good guys”, “we love you”, “we are not a faceless megacorp” is completely out of place and pathetic when you represent a company offering a service to your users, dealing with critical private data and precious (for many, not for everybody, according to the comments on Facebook) photos of these individuals. Between friends, you do not need a Terms of Service Agreement. Between friends, you do not need a Terms of Service where you grant yourself ownership on the work of your other friend. Hipstamatic might very well be run by a team of “six artists” (once again, from the aforementioned Facebook post), but these artists are also skilled businessmen: they are currently running an app that has been top ranking in the App Store for a long time, and this means with no doubt millions of dollars of almost net profits, once you take away Apple’s 30% on their sales. Not a megacorporate, but a very healthy, profitable, and attractive company. On the outside, in their Facebook posts, Hipstamatic’s developers might say they are your friends, but this did not prevent them from slapping into their Terms of Service a clause that is simply unacceptable for anybody valuing their work even a tiny bit. Show your kind face to your users, and put the nasty clauses into the Terms of Service is a way of conducting business that has nothing to do with being artists or being good guys: in today’s market, it simply means you are an astute and world-savvy businessman.

And let’s even say you buy their excuses, because you want to, you think they are nice and friendly and their app is cool. You trust these “six artists” and you believe that they just hacked together a Terms of Service in their free time and threw it at you without thinking twice. This is even more unacceptable, as I wrote in my post about Instagram. A company like Hipstamatic might already be worth millions of dollars to a potential buyer; acquiring rights on potentially million of photos of users that maybe just agreed to the TOS without even reading it (don’t we do that all the time? and it’s all our fault) will make the value of their assets soar. So, the “six artists” might sell their company in the future. Or maybe the company will go bankrupt – you know, they say another Internet bubble is soon to explode, and we live in uncertain times – and another company will purchase all their assets. At that point, guess what will happen to your photos? They will fall into the hands of this other company, and you will be able to do absolutely nothing about it, because by agreeing to the TOS, you gave Hipstamatic full “transferable right and license to use”.

Please think about this, understand what kind of crazy, offensive uses could be made of your photos if you agree to such a TOS, and I am sure you can’t do anything else but being at least disturbed by it.

In the end, I have no doubt that Hipstamatic will revise their Terms of Service, giving us proof that the nasty clause in their TOS was far from being “necessary” (again, from the Facebook post) – it was just there to cover the six artists’ backs, to the detriment of the thousands (millions?) of artists that are using their application. Am I right? We will see.

As users of these apps we must always be careful and smart, and remember that as nice or as friendly these developers might seem, they are there trying to make money out of you. There is nothing wrong in that, but the relationship between company and client can be a good one if it is based on honesty or at least on a well-balanced TOS, not on half-assed attempts at taking away as many rights as possible from the users.

I hate to quote myself because I do not think I am a good writer, but it is just sad that the ending I wrote to my piece about Instagram applies perfectly here:

“…These users should have read the TOS, so in the end they were technically responsible for their choice of using Instagram and uploading their photos. But as a small professional software developer and website owner, I like to think about my potential users as people I must protect, and I must know that almost nobody, these days, will read the TOS. Maybe photographers are not good businessmen or scrupulous Internet users, but they are often very passionate about their work. It’s their art.  And this deserves respect and assumption of responsibility – especially if you are a “starter” planning to make a living out of your users’ art.”

Be proud of what you do, and do not give it away for nothing – unless you want to.

Tom Myler February 14, 2011 at 1:33 am

What constitutes a user submission? Is this only if you submit a photo for one of the Hipstamatic contests? What about when you upload to Flickr via the Hipstamatic app?

Reply

Harry February 14, 2011 at 7:44 am

Hello Tom!

Thanks for commenting. Good question. In the Facebook post I linked to in my article, they state that the user agreement’s nasty parts apply only if you”upload images to either the Big Hipstamatic Show or Hipstamart”. But they just say it in that unofficial context. In their Terms of Service, this is written:

“The Service may invite you to chat or participate in blogs, message boards, online forums and other functionality and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute or broadcast content and materials to Hipstamatic and/or to or via the Service, including, without limitation, text, writings, photographs, graphics, comments, suggestions or personally identifiable information or other material (collectively “User Content”). Any material you transmit to Hipstamatic will be treated as non-confidential and non-proprietary.”

Then followed by:

“You grant to Hipstamatic the unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual fully-paid and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, resell, sublicense, display, perform, transmit, publish, broadcast, modify, make derivative works from, retitle, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User Content to which you have contributed, for any purpose whatsoever, in any and all formats; on or through any and all media, software, formula or medium now known or hereafter known; and with any technology or devices now known or hereafter developed and to advertise, market and promote same.”

Basically, once you accept the agreement, you are giving them full rights on your photos whenever you upload them to one of their services. Right now, these services are just the two they mentioned, but they can expand that at any time.

About the sharing functionality, I would say that it does not fall into the “User Content” category, yet there are the “transmit” term and the “collectively” term in the agreement excerpt above (that I highlighted) that make it difficult to answer your question.

This is a professionally written Terms of Service agreement, and as a lot of professionally written Terms of Service documents it leaves plenty of space to interpretation – in favor of the company, of course.

Reply

Alexander February 15, 2011 at 6:27 pm

I still think there will be more people, who care less about those terms and will keep posting their shots no matter what. This is just a human nature, I belive – You want to WIN in the Hipstamatic Contest and you submit your shots whatever the terms are:)

Personally, I would do the same. First, I don’t like reading the terms and know that any of the text entitles terms and conditions can’t be user friendly. Second, and this is more important, I belive in human relations and hope that Hipstamatics will keep the word and won’t screw up:)

Reply

Emmie February 15, 2011 at 9:34 pm

I have never used their online features, I only liked to use the camera. But now I feel uncomfortable using it. I feel they kinda spoiled the fun for me.

Reply

Dan March 22, 2011 at 1:48 am

Hipstamatic is not great enough to justify their arrogance. But even if they were, that’s not the right way to handle things. A lot of apps out there do more or less the same as Hipstamatic, in a less patronizing way. I want to use a photo app, for god’s sake, not to become member of a cult.

Reply

Leave a Comment

Previous post:

Next post: