Nauticam using images without consent

[Lasongo 8]

This is a warning to all underwater photographers about using hashtags in your photos. If this post violates Wetpixel’s terms of sharing please let me know and I’ll remove it or please remove it beforehand.

Nauticam used my algae-covered Sea Turtle image which I shared here a couple of weeks ago on their webpage without my permission AND without informing me. I found out about it from a photographer friend who was comparing housing specs.

I spoke directly with Nauticam and they ignored my voicemails (plural), my Facebook massaged (plural) and I did receive an email reply from Ryan Canon, one of their Directors. Ryan sent me a straight-forward and firm email stating that since I tagged Nauticam in my Instagram feed they could use the image as they saw fit.

I spoke with several of you on Facebook, on Instagram and even a few in person and the consensus was unanimous. It’s ok to reshare on social media; however, to post on your website to sell an item (see pictures) without permission or compensation is NOT.

I exchanged a few more emails with Ryan and he remained firm Nauticam can do as they please. They said since I tagged "#nauticam" they could use it how they saw fit.

I noticed this weekend the image had been pulled down though.

I am LIVID about several things:

1) My permission was not asked. I would have said yes if asked in advance.

2) When I asked for something in return for usage, he blew me off and said because it’s tagged they can use it.

3) No apology. A simple, “Hey Julian, it’s a new automated feature and we’re still working out the bugs...” or “someone should have reached out, we’re so sorry...” but nothing.

I tag the gear I use so people know and don’t have to ask, plus a few have been very encouraging.

Nauticam used my image on their website, with the expressed goal of promoting and selling a product and did not inform me or ask me. That’s against FB terms of use and IG’s too.

Moral of the story is be VERY wary of who you tag in your posts.

Edited May 1, 2018 by Lasongo

[Alison Perkins 29]

Thanks for posting Lasongo. I hope the Wetpixel administrators will choose to leave your thread up on Facebook. This is an important issue and the more people that see it the better. If they want to drive traffic back to the Wetpixel forum by turning off comments, then that's okay. But deleting the engagement so far, and the comments that can educate, wouldn't be cool.

Edited May 1, 2018 by Alison Perkins

[scuba_d 6]

Thank you for sharing with us. I agree with Alison, it is an important issue that affect us all and more people should see it.

[Ryan 48]

The cause of this situation is an instagram feed that was posted on our web page nauticam.com, and managed by my team in the USA. The purpose of the feed is to aggregate content from instagram using hash tags associated with our brand for a gallery on our site. I love this user generated content - and feel that it takes down some of the intimidation factor associated with complicated gear, and makes what we do approachable and attainable. My feeling is also that this provides a great avenue for exposure outside of instagram, which in theory everyone benefits from, and many users have reacted to positively. My personal and ultimate goal was to promote the photographers that use our brand alongside the products we make.

 

I never asserted any ownership of the image - which Julian has claimed above. That was not in the emails we exchanged, and my feeling is that this point is embellished in the account here to add more of an emotional charge to the situation. His comments on the facebook thread suggest justification and bullying, which also simply did not happen. My private explanation to him was simply how the feed worked. I feel that my replies to Julian are actually taken out of context here, but I appreciate his bringing this specific issue to our attention, and the feedback we have received as a result.

 

We have absolutely no interest in violating any copyright. Someone uses #nauticam because they want an association with our brand, and if they no longer wish to have that association they can remove it, or refrain from using it. What better association is there than having that image fed into the brand web page? We are not saving the image on our servers or modifying it in any way. The entire instagram tag, comment, and user information is retained in accordance with their embed terms. The instagram poster has complete control over the image.

 

We learned a few things from all of this... It is clear that instagram posters appreciate the courtesy of a permission request before an image is shared on our branded site, and that there is a higher level of sensitivity to feeds pulled outside of the instagram app than content shared within it. That makes sense, and we have already implemented a strategy to manage this permission process for the future.

 

I am deeply sorry for the situation. I am sorry that a platform built to show the incredible work of our user base has inspired these feelings. I'm grateful that Julian brought this to our attention so we could remedy it, and apologize to anyone else that feels this action was inappropriate on our part.

[ScubaKelldy 5]

Hi Ryan,

You posted one of my photos on your webpage. It's been taken down since I posted it on the original Wetpixel FB post of Julian. I don't mean to belabor this issue. And I'm not angry, I just hope you understand why there was a number of people who got upset about this. (And based on your statement, I think you understand some points, but I also think you miss out on some... so as one of your customers, allow me the opportunity to speak up a bit for my fellow customers...)

I can understand the technology behind it, that it was an app/plug-in that just pulled photos from Instagram based on hashtags (#nauticam and #cameramodel), which you guys then used to filter and show on the relevant page. You guys gave proper attribution, so I don't think there was any intention to infringe on copyrights. As an amateur photographer, you're right in saying that "this provides a great avenue for exposure outside instagram, which in theory everyone benefits from". It is definitely something I would have been happy about -- it's validation that it was a good photo.

The unhappiness with the situation though, came from a few things --
1. It wouldn't have taken much effort to message the owners of the photo to either ask for permission or even let them know about it. You already chose photos, what's a little effort in asking? When someone shares or re-posts one of our social media posts, we get alerted to it. There was no such alert for when it was re-posted on your website, so we couldn't possibly speak up if we thought it was inappropriate. You made the decision on appropriateness for us. It is false for you to say "The instagram poster has complete control over the image," when we had no clue that you used it.

2. When our image was used, you guys put it directly on the page where the housing we use is advertised. That's clear commercial use. It isn't just a general / generic promotion, it was to help you guys sell more. Essentially, in marketing lingo, it was a testimonial for your product (an unpaid one). You could say, "Well, how is that different from leaving a review on a hotel site?" or "You already posted it on Instagram anyway using our brand hashtag" But it is different, because you do recognize that it does have some commercial value as "it takes down some of the intimidation factor associated with complicated gear, and makes what we do approachable and attainable." It's different because it's our work (which you agree to) and the proximity to the "Add To Cart" button, how the image and the caption are separated by the price and the "Add to Cart" button... It was clearly laid out to help Nauticam sell more. You have brand ambassadors, and I'm sure you compensate them (in some way, shape or form) for the commercial purposes they serve. I'm not saying that our photos are up there with your ambassador's photos, but you thank them in some way shape or form for their commercial contributions to your brand. Why is it any different for us normal customers?

3. Yes, we used the #nauticam. We may have had different reasons for using that hashtag, but your tone seems to indicate that it is a one way street... "because they want an association with your brand,"... Yes, we wanted to associate our photos with the gear that we purchased, but let's not make it seem one-sided here... that it is only to our (your customers') benefit that we use the hashtag. In this day and age, it is part of your brand equity, part of your social media footprint, and part of some marketing campaign that it is used. (Well clearly, you saw the value in it -- since you used it to get photos for your website... and you also want that association with your brand.)

4. We are your customers. I believe we all bought our housings, ports, etc from you. I like the housing I have, and the images I get out of it. I paid money for it. I'm not sure exactly what transpired between you and Julian, but as far as I'm concerned:
a. Your apology is half-hearted, full of rationalizations and defense mechanisms like "What better association is there than having that image fed into the brand web page?" or "If they no longer wish to have that association, they can remove it, or refrain from using it"
b. Since it's been brought up - have you actually remedied it and apologized directly to those who spoke out today? Have you already tried reaching out to each instagram account affected? It's hard to believe that you really understand or that you're really sincere, if apologies are issued just here in this forum. So far, you've only mentioned Julian.

As a company that is built on photographers and by photographers, it's surprising you guys took this so lightly. Or that you guys are so dismissive of the validity of our concerns. This isn't going to make me stop using the housing, ports and all the other Nauticam gear I have -- I paid good money for it. I enjoy using my kit. But it doesn't make me love you guys either.

[Lasongo 8]

Ryan, Im honestly flabbergasted. At issue here is how the images were used. The images were displayed on Nauticams website in conjunction with products for sale, implying our consent and endorsement of said product.

 

This is no different than if someone took a photo of you and standing next to a political yard sign and the used it as an ad without telling you.

 

When I reached out to Nauticam the reply I got was only an explanation of the feed. At no point in any communication did you ask if it was ok to continue using the image or ask how I felt about its continued usage or even what I wanted to do going forward. Itonically I was warned to expect that exact response.

 

And also, why did it take 2 voicemails, 2 Facebook messages and 2 emails before I even got my first response?

 

Ive spoken to the social media heads of a well-respected and known Aquarium and also of a major corporation and they both said they would never consider such a campaign simply because they knew it would anger their user-base and they didnt even want to mess with the legal issues.

 

At issue here are two simple things:

 

1). At no point, ever, was permission asked. Not before the images were posted nor after I reached out.

 

2). Resharing on the relevant social media is acceptable, that is what hashtags are intends for. Displaying them on your website, without permission or a dedicated, obvious campaign or hastag, is forbidden. Again it implies our direct endorsement and approval, which was never asked nor given.

[stphnmartin 115]

Ryan, I find your response tone deaf. You stated on FB that you are in compliance with IGs ToS in the use of our images. I asked you to point directly to the portion of the ToS where you're in compliance and you didn't respond. I'd still like you to do that now.

 

"We have absolutely no interest in violating any copyright."

 

This is in direct conflict with your actions of implementing technology to take content without permission.

 

"What better association is there than having that image fed into the brand web page?"

 

Compensation for the use of copyrighted material in the promotion of your products. That would be much better.

 

"We are not saving the image on our servers or modifying it in any way."

 

This is immaterial in terms of violating copyrights. You're not even in compliance with the software service you've relied upon to display the copyrighted material on your website from foursixty.com which specifies you must have rights and ownership of the content you distribute through the software. Nonetheless the copyrighted images appear on your website. I'd like you to demonstrate where you'e in compliance with foursixty.com's ToS.

 

"The instagram poster has complete control over the image."

 

And yet the copyrighted images ended up in a curated gallery on nauticams website without permission or notification? Can you not see the contradiction here?

 

"It is clear that instagram posters appreciate the courtesy of a permission request before an image is shared on our branded site..."

 

Glad you learned this. I'd hope a company that sells expensive equipment for underwater photography and videography would actually be more in tune with its customers such that asking permission first was a no-brainer. But, It's better to now possess this knowledge than to continue on without it.

Edited May 1, 2018 by stphnmartin

[okuma 64]

My 2 cents is anything you post on the internet ends up as fair game; legal or not.

So if you don't want it absorbed, borrowed or out right stolen, then don't post it!

[stphnmartin 115]

My 2 cents is anything you post on the internet ends up as fair game; legal or not.

So if you don't want it absorbed, borrowed or out right stolen, then don't post it!

 

Perhaps, for mistaken reasons, we expected better of Nauticam.

[Reku 1]

It sounds like they need to hire some more ambassadors if they are short on pictures to show off the product.

 

Any other company would see that doing something like this would be suicide. They would never even consider it.

 

I am surprised by this. They directly alienated their customer base.

 

 

 

Someone made a poor choice when they implemented this.

 

I would probably turn this "feature" off if I were them.

[diverdoug1 56]

If Nauticam does not BOTH apologize and PAY the photographers, I will stop recommending their products. Nauticam has described their products as”professional” equipment. Professionals get paid! If you do not pay up, I hope you lose your market share. DO THE RIGHT THING NAUTICAM!

[dreifish 362]

From a purely legal perspective, I think it's an interesting case. I wouldn't rush to conclude that what occurred is copyright infringement. I think it's an un-litigated issue, so it's unlikely that there's law directly on point. There's good arguments, however, that no infringement occurred so long as the image was hosted by Instagram and only integrated on the Nauticam website through their third-party APIs. You should probably check the license you grant Instagram when you post an image on their platform -- if it doesn't cover this exact use case, then Instagram's lawyers are really doing a bad job. The OP might have a case for unjust enrichment, if he could actually show Nauticam commercially benefited as a result of the image's use. Good luck with that though

 

From a business ethics perspective, well, that's a different matter entirely. I can certainly understand why the photographers who ended up having images featured on the Nauticam page without any prior contact would be upset. There's a number of reasons I can think of for using a hash-tag that have nothing to do with the desire to endorse the manufacturer. Maybe the OP would just rather not answer the inevitable question of what equipment he or she used.

 

(And for the record, I'm a copyright lawyer, but this isn't legal advice).

[Peterpan 15]

Nauticam used a picture from me on their website for commercial purpose as well, it was posted on Instagram, nobody asked for permission or even told me that it is shown there. I informed them via mail that i think that it is a copyright violation. The answer was more or less: "based on our interpretation of their current policies this is allowed".

 

I don't know what to think about it. Just bought equipment for 8.000 dollars and my pictures are used to sell their housings! I recommended Nauticam housing to so many people over the last years, maybe that will change - still the products are great.

 

Sorry for the bad english

 

Oliver

[ScubaKelldy 5]

At least some of you got a response. I didn't even get one!

[stphnmartin 115]

Here is my photo appropriated without permission and used to promote the GH5 housing on the Nauticam website. Be careful how you hashtag images from now on. Also notice the "FOURSIXTY" in the bottom right. This is the service nauticam used to access the photo. The ToS from FOURSIXTY says you have to have permission to use the content via their service. So, this is also a violation.

[Peterpan 15]

So many photos where on the website, all gone now

Edited May 2, 2018 by Peterpan

[Reku 1]

Nauticam,

 

Thanks for turning off the plugin. You may want to do a feasibility study the next time you try something like this - this was just a horrible idea.

 

It's possible you had good intentions and it just didn't work out. Either way - I am glad to see that there was something done to resolve this.

[ScubaKelldy 5]

To all those whose photos were up -- Ryan's trying to reach everyone.

[Davide DB 492]

From a purely legal perspective, I think it's an interesting case. I wouldn't rush to conclude that what occurred is copyright infringement. I think it's an un-litigated issue, so it's unlikely that there's law directly on point. There's good arguments, however, that no infringement occurred so long as the image was hosted by Instagram and only integrated on the Nauticam website through their third-party APIs. You should probably check the license you grant Instagram when you post an image on their platform -- if it doesn't cover this exact use case, then Instagram's lawyers are really doing a bad job. The OP might have a case for unjust enrichment, if he could actually show Nauticam commercially benefited as a result of the image's use. Good luck with that though

 

 

I entirely agree.

It's like embedding a tweet in another platform. As long as the original post and link is not removed it's ok. A user can always click on it and brought to the original page.

I'm not a lawyer but I'm pretty confident it's something related to Instagram ToS and not nauticam.

[stphnmartin 115]

 

I entirely agree.

It's like embedding a tweet in another platform. As long as the original post and link is not removed it's ok. A user can always click on it and brought to the original page.

I'm not a lawyer but I'm pretty confident it's something related to Instagram ToS and not nauticam.

 

"It's like embedding a tweet in another platform."

 

Yes, a tweet that you've spent thousands of dollars on equipment and thousands of dollars on travel to fly around the world to get the shot only to have to put next to an add to cart button on the Nauticam website without notice.

 

"I'm not a lawyer but I'm pretty confident it's something related to Instagram ToS and not nauticam."

 

Excellent, please point out in the Instagram ToS where this is covered.

Edited May 4, 2018 by stphnmartin

[Davide DB 492]

Excellent, please point out in the Instagram ToS where this is covered.

 

https://help.twitter.com/en/safety-and-security/public-and-protected-tweets

 

Note: If you have authorized a third-party application to access your account, that third-party application may be able to see your protected Tweets. Keep in mind that when you choose to share content on Twitter with others, this content may be downloaded or shared.

 

After much ado about nothing do you have the willingness to read Instagram ToS?

 

As long the platform gives you the possibility to share your content there's nothing to cry about.

You do not like it? Protect your posts as you do on FB.

 

Yawn

[stphnmartin 115]

Note: If you have authorized a third-party application to access your account, that third-party application may be able to see your protected Tweets. Keep in mind that when you choose to share content on Twitter with others, this content may be downloaded or shared.

 

"If you have authorized a third-party application..." This is a key point, giving authorization.

 

You said "I'm not a lawyer but I'm pretty confident it's something related to Instagram ToS and not nauticam." Then replied with the Twitter ToS.

[Davide DB 492]

"If you have authorized a third-party application..." This is a key point, giving authorization.

 

The key point is that sadly all these authorizations are opt-out aka by default your are giving them authorization.

 

 

You said "I'm not a lawyer but I'm pretty confident it's something related to Instagram ToS and not nauticam." Then replied with the Twitter ToS.

 

I really do not get you. I cited Twitter just because I have a Twitter account while I do not have an Instragram account. BTW given that you opened this weird thread is up to you to read the Instagram ToS not me.

And I believe you should have read Instagram ToS before posting here.

Anyway given that it seem that your Google search doesn't work, here it is, even fully explained:

 

https://petapixel.com/2016/12/07/lawyer-digs-instagrams-terms-use/

 

From there:

 

The licensing section, though, is what I’d like to examine a little more closely. Particularly, this paragraph:

 

Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy, available here http://instagram.com/legal/privacy/, including but not limited to sections 3 (“Sharing of Your Information”), 4 (“How We Store Your Information”), and 5 (“Your Choices About Your Information”).

 

Crystal clear, right? No? OK, let’s break it down, piece by piece.

 

Instagram does not claim ownership of any Content that you post on or through the Service.

 

You still own your photos (i.e., you own the copyright in your photos). Hey, that’s nice.

 

Instead, you hereby grant to Instagram a non-exclusive,

“Non-exclusive” means that while Instagram is getting a license, you are still free to license the photo to others as well.

 

fully paid

 

This means Instagram doesn’t have to pay you anything in return for the license.

 

and royalty-free,

 

This means Instagram won’t have to pay you anything for it in the future.

 

transferable,

 

This means Instagram can give this license to anyone they want. Getting nervous yet?

 

sub-licensable,

 

This means Instagram can sell a sub-license to another party. And they don’t have to pay you for it, because remember, we agreed above that this license is “royalty-free.”

 

worldwide

Self-explanatory.

license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy…

Are alarm bells going off in your head? I hope so. You’ve just granted Instagram the right to do anything at all with your photos, without ever paying you a dime for any of it.

 

 

 

Ryan used one of the bazillion social network web plugins out there. The plugin is feed with a stream of filtered content (in his case, Instragram photos tagged Nauticam). So it's perfectly legal and having an Instagram account you authorized this kind of use from the very first day. It's the same for all SN: Instagram, Twitter, FB, G+, you name it.

Don't you like it? Just share you photo with monks on Meteora Monastir.

 

Regarding your rumble the only gray territory I see is whether you specify some specific license for your photos (i.e. BY NC ND SA) and nauticam did not respect it. My Vimeo videos are tagged NC SA so I would pissed of fto see one of them in a commercial website.

 

Its' enough for me.

Edited May 4, 2018 by Davide DB

[DDT uk 4]

At the risk of being a devils advocate, I do struggle with the idea of these being professional images that people are expecting payment for, yet they are putting them on Insta. Surely people are aware that once it goes on Insta any real hope of it as a profitable image vanishes. Not only are you granted licensing rights to them to do pretty much anything they like, but most magazines that I deal with (this is mainly fashion granted) will not touch anything that has already been of social media outside of their accounts.

[stphnmartin 115]

 

The key point is that sadly all these authorizations are opt-out aka by default your are giving them authorization.

 

 

 

I really do not get you. I cited Twitter just because I have a Twitter account while I do not have an Instragram account. BTW given that you opened this weird thread is up to you to read the Instagram ToS not me.

And I believe you should have read Instagram ToS before posting here.

Anyway given that it seem that your Google search doesn't work, here it is, even fully explained:

 

https://petapixel.com/2016/12/07/lawyer-digs-instagrams-terms-use/

 

From there:

 

 

 

Ryan used one of the bazillion social network web plugins out there. The plugin is feed with a stream of filtered content (in his case, Instragram photos tagged Nauticam). So it's perfectly legal and having an Instagram account you authorized this kind of use from the very first day. It's the same for all SN: Instagram, Twitter, FB, G+, you name it.

Don't you like it? Just share you photo with monks on Meteora Monastir.

 

Regarding your rumble the only gray territory I see is whether you specify some specific license for your photos (i.e. BY NC ND SA) and nauticam did not respect it. My Vimeo videos are tagged NC SA so I would pissed of fto see one of them in a commercial website.

 

Its' enough for me.

 

I didn't open this weird thread. I'm commenting on it just like you are.

 

The specific web plugin Nauticam used from the bazillion you say exist is a service from foursixty.com which can funnel IG images to a website and emails. Here's what foursixty.com says about rights:

 

"digital rights management.

With Foursixty's automated rights management system, you'll be able to request and secure the rights to your customer photos and videos with just a click. And, we’ll monitor content approvals as they come in so you can keep doing your thing."

 

Built into this service is a way to request a secure rights from the customer--the main sticking point with what Nauticam did, using photos without asking. This wasn't implemented, but it sounds like Ryan is going back to the drawing board to implement.

 

Further from the https://foursixty.comToS (relevant text in bold https://foursixty.com/460/terms_conditions):

 

5. YOUR LIMITED LICENSE OF YOUR USER CONTENT TO FOURSIXTY

We do not claim any ownership interest in your User Content, but we do need the right to use your User Content to the extent necessary to operate the Site and provide the Services, now and in the future.

Therefore, by posting or distributing User Content to or through the Services, you (a) grant Foursixty and its affiliates and subsidiaries a non-exclusive, royalty-free, transferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from such User Content, in the manner in and for the purposes for which the Services from time to time use such User Content; (b) represent and warrant that (i) you own and control all of the rights to the User Content that you post or otherwise distribute, or you otherwise have the lawful right to post and distribute that User Content, to or through the Services; and (ii) the use and posting or other transmission of such User Content does not violate these Terms and will not violate any rights of or cause injury to any person or entity. In particular, if you provide User Content from another website, you represent and warrant that you are authorized to do so, and that doing so will not violate the terms of use of that website.

 

If your User Content is intended for the use of other Users, you also grant us and our affiliates and subsidiaries a non-exclusive, royalty-free, transferable right to sublicense such User Content to such Users for their use in connection with their use of the Services, as described in Section 6 of these Terms. For clarity, you acknowledge that the Services allow other Users of the Services to post, publish and distribute your User Content in the manner described on the Site, and that by entering into these Terms you expressly permit us to license to them your User Content for that purpose, and you acknowledge that we have no control over their usage of your User Content.

These licenses from you are non-exclusive because you have the right to use your User Content elsewhere. They are royalty-free because we are not required to pay you for the use of your User Content on the Services. And they are transferable because we need the right to transfer these licenses to any successor operator of the Services. Our rights to “modify, adapt, translate, and create derivative works from” are necessary because the normal operation of the Services does this to your User Content when it processes it for use in the Services.