New Copyright Grab … by a Museum

MoMA Photo Club

By Frank Gallagher, NANPA Blog Coordinator

We’ve written many times about copyright issues that NANPA’s Advocacy Committee, chaired by Jane Halperin and assisted by Sean Fitzgerald, is following and the actions NANPA has taken to protect the intellectual property rights of photographers. Yet another troubling example has surfaced of an initiative that tramples on photographers rights and, this time, from a surprising source: the Museum of Modern Art in New York, also known as MoMA.

MoMA recently launched a “Photo Club” that invites people to participate in monthly themes by tagging photos #MoMAPhotoClub on social media. The museum’s website says it will feature some of the resulting images on its website, social media channels, and in ads on New York City subway train cars. So far, so good.

The devil’s in the details

But the legal language way down at the bottom of the MoMA Photo Club webpage goes much further, stating “By tagging photos using #MoMAPhotoClub, you grant The Museum of Modern Art (“MoMA”) (and those authorized by MoMA) a royalty-free, worldwide, perpetual, sublicensable, non-exclusive license to publicly display, distribute, reproduce, and create derivative works of such photos, in whole or in part (including, but not limited to, any associated captions and handles), in any media now existing or later developed, for any purpose, including, but not limited to, advertising and promotion, and inclusion on MoMA’s website and social media channels.” Note that this legal language does not appear on the MoMA Photo Club Instagram account.

While MoMA may only intend to use tagged photos in certain limited ways, the legal language gives them virtually unlimited rights to do whatever they may please with images, including to sublicense a photographer’s image to another person or entity, forever.

The broad rights language may not be integral to or even necessary for an initiative like the MoMA Photo Club. We’ve seen instances where lawyers are simply trying to craft wording that will cover all eventualities, known and unknown, now and in the future. In so doing, they ask for far more than the institution really needs.

That’s when photographers need to speak up.

Screenshot of MoMA Photo Club on Instagram
Screenshot of MoMA Photo Club on Instagram

Speaking out can bring change

The good news is that, when groups like NANPA and our friends in the creative community bring these issues to the attention of the institution, we’re sometimes able to work with them to craft more reasonable terms — a win-win situation for both sides.

In March Sean Fitzgerald wrote about a “photo campaign” run by the New Jersey Department of Fish and Wildlife (NJDFW) which included legal language giving the department unnecessarily expansive rights to photos received. Fitzgerald brought NANPA’s concerns to the department and recently reported that NJDFW was receptive and is working with him on revisions to their campaign’s language.

NANPA will continue to be on the lookout for overly broad language, rights grabs, and other threats to photographers’ intellectual property rights. In the meanwhile, as always, know what you’re getting into and read the fine print!