[Update 25 November 2009: Tikatok is in the process of revising its User Agreement to reflect that authors will own all original materials that they submit. See the comment from Tikatok’s Neal Grigsby.]
“Always read the fine print,” we’re told. Too bloody right when it comes to scummy websites like Titatok. Watch out, kids, they’re stealing your creativity!
On the surface it looks pleasant enough. Smiling kiddies, pastel colours and the chance to share your child’s creativity with friends and family. But read the terms and conditions and you’ll soon see that the slogan “Capture your child’s creativity” is literally true.
Your child’s creativity will be captured. By Tikatok. They’ll profit by using your children for unpaid child labour.
Check out this section of their User Agreement with my emphasis added:
V. Ownership of Submissions
Certain areas of the Site will permit you to send materials to Tikatok such as stories and drawings. Upon submission, all creations, ideas, concepts, notes, drafts, stories, artwork, drawings, photographs or other information of any nature (collectively, the “Submissions”), submitted by an author to the Site shall be deemed to be, and shall remain, the property of Tikatok, and the author will be deemed for all purposes to have assigned all of his or her worldwide right, title and interest in and to such Submissions to Tikatok and waived any “moral” or author’s rights therein. None of the Submissions shall be subject to any obligation of confidence on the part of Tikatok, and Tikatok shall not be liable for any use or disclosure of all or part of the Submissions. Without limiting the foregoing, Tikatok shall exclusively own all now known or hereafter existing rights to the Submissions of every kind and nature throughout the world, and shall be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions.
The book or on-line display of the book on the Site will contain a notice substantially in the following form: “Copyright © 2009 by Tikatok LLC. All rights reserved.”
Yes, that’s right. Anything you give to Tikatok they claim as theirs. Upload a family photo or your child’s stories and drawings, and Tikatok will be able to do whatever they like with it, including sell it for profit, without any payment to you or even any acknowledgement.
Don’t you think that’s just a little bit disgusting?
I think this is appalling. Especially when Tikatok is focussed on the creative output of children. And specially when they’ve got the gall to say, further down in their User Agreement:
You may not use the Site for commercial purposes.
Now it’s common enough when you enter a competition, say, for your submissions to be licensed to promote that competition or the sponsor. That’s the exchange — in return for your chance of winning the prize. But this is naked theft. From children. I spit upon them.
As I say, always read the fine print!
[Hat-tip to Stephen Loosley for spotting this outrage.]
Boycott tickatok has a nice ring to it.
And to top it off, they’re a vanity publishing company that gouge you $2.99 to downlad an ebook of your child’s stolen creation. More for paper, of course.
From their Learn More link:
“With Tikatok, becoming a published author is easy. Just write a story, illustrate it and order as many copies as you want.”
Just remember: don’t email that PDF to your friends and family…
The worse part is it’s a common clause in user agreements. Even Tumblr had one in its early days, but a discussion with users and its lead developer (who realised the absurdity) lead to a change. In that case the clause only seemed to be there by default, and though it’s no excuse for such user-unfriendly terms, I would not be surprised if this is frequently the case.
This is no accident.
Who owns the copyright to any book created in my account or my child’s account?
http://www.tikatok.com/help/faq#faq_11
Tikatok owns the copyright to all books created on Tikatok.com.
That’s truly grim. I’ll be publicising this to my friends with kids.
I think what’s ‘appalling’, to put it frankly, is the misleading message of this post. As said above, this is common in EULAs, and is necessary in cases such as this. It’s business, and the company should absolutely have the right to publish submitted content to promote the site’s services. If this clause [read: a clause like this] didn’t exist within the EULA, the service provider could face liability in such cases of promotion and would be at the mercy of the content uploader. It’s just good common business sense.
I’ll give you that the wording of the EULA is ‘harsh’, but (again, frankly) it’s a bit simple-minded to take this at face value.
To put a few things in perspective:
1) This is not child labor, and to make such a direct accusation of what appears to be a good-spirited company is ridiculous. Ask your children if they would mind exchanging their ‘commercial right’ to the crafts they create on this site for the privilege of using tools somebody else is allowing them to use for free. My guess is your 5 year old isn’t interested in making a quick buck from their family scrapbook. I’ll ask my kids too. I think I have a good idea what they’ll say. When your kids visit with their friends and color in their friend’s coloring books, do they expect that the ownership of said coloring book is transferred? I hope not.
2) Tickatok’s intention is NOT to sell your family photos for gain. This is of course an unofficial statement as I am not affiliated w/ Tickatok and should be treated as such. However, it seems it would be common sense to most of us. They SHOULD have the right to use your uploaded content as promotional material for their services. It is no different than a photographer using your photos as reference of previous work when promoting to future prospects. Again, it’s just good business sense.
All in all, I’d say my biggest gripe with this is the nearly slanderous nature of the content of this post. Of course you’re entitled to your opinions, but a post with such direct connotations based on your INTERPRETATION of the content of the EULA of a company you’re not affiliated with, and without any comment from the alleged offender on what appears to be a somewhat reputable ‘new source’ is damaging to say the least.
I think I’ll go sign my kids up for an account right now.
To be clear:
… 2) Tickatok’s intention is NOT to sell your family photos to third parties for gain. …
…but they can if they want to (and there’s not a blessed thing you can do about it)
@Alex Willemyns: Thanks for finding that. There’s an awful lot of copy-and-paste lawyering out there. Of course the fact that it’s “common” doesn’t make it “right”.
Back in the first dot-com boom, a start-up I worked for here in Sydney used some commercially-available CDs of standard document templates — the first problem being that they were based on US law and practice, not Australian. It had an employment contact which said, amongst other things, that employees agreed work whatever hours were necessary to achieve the “goals” — or if the word wasn’t “goals” it was something equivalent.
As I pointed out, the goals weren’t defined anywhere, but could be set by the CEO or the marketing department as we went along, without reference to the employees. This made it possible for quite unreasonable or even impossible goals to be set, yet the employees would still be required to work unlimited unpaid overtime.
The boss’ response was, “That’s the standard contract we use.” My response to that was, “Then it needs changing” — either to put some ceiling on the amount of unpaid overtime, or to add in suitable compensation for working beyond standard working hours or beyond some higher ceiling, or to ensure employees were involved with setting the goals and had agreed to them, or some combination of those.
@Lorren Biffin: Bollocks. As I just said, that the wording is “common” doesn’t make it any less obnoxious. If other companies use it then they, too, are behaving very, very badly in my opinion.
You say:
Bollocks. If the company wants to use a user’s submissions to promote the site, they can just ask and seek permission. In fact, I imagine people would be flattered to be asked in this way, and in most cases would be more than happy to grant permissions.
Even if the company feel the need to have pre-approval rather than having to ask — lazy sods! — then the clause could say “for the purposes of promoting the Site in any media”, not “for all purposes” and “unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise”.
And even with all that, there’s absolutely no need whatsoever to claim the author’s moral rights, such as the right to be identified as the author of the work.
In all of this, I think the reasonable principle to follow is to obtain the rights which you actually need for the purposes of running the Site, and no more. Anything more is a just naked, greedy grab for intellectual property.
You think it’s “simple minded” to work on what the legal document actually says rather than an imagined intent of the company? Really? I think it’s very much the other way around. To work on some assumption of the company’s intent — based on what, by the way? the pastel colours? the smiling children? — is naive.
Asking a 5-year-old what they think about the deal is a red herring. A 5-year-old doesn’t have what it takes to understand what they’re trading away — which is precisely why, for example, anyone under the age of 13 is not allowed to sign up for online accounts without their parents’ involvement, both here in Australia and in the US.
But you’re right, Lorren, we should seek a response from Tikatok. I shall do so now.
I’d lean on the side of “they won’t”.
I feel it’s reckless (not to mention pessimistic and negative) to assume the worst when there’s no evidence to merit such a claim. It’s like being upset about a clause in your employment contract stating that your employer can fire you for any reason what-so-ever. It sucks, but it’s very common, there to protect your employer’s liability in the case of extraneous circumstances, and is not likely.
The article makes rise to unfounded concerns and gives a bad label to a company that hasn’t earned it.
I am Neal Grigsby, the community manager for Tikatok. I wanted to thank you and your readers for your comments about Tikatok’s User Agreement, and to let you know that we are in the process of updating the User Agreement to reflect that authors will own all original materials that they submit to Tikatok. Tikatok will own any underlying Tikatok templates that are used by the author while on http://www.tikatok.com, as well as any other content that is licensed from third parties by Tikatok.
@Lorren Biffin: I think we’ll have to agree to disagree. I think it’s reckless not to imagine the worst-case scenarios before signing a legal document, and important to ask what it is that’ll prevent those imagined worst-case scenarios happening.
How do you know my concerns are unfounded, Lorren? You say you have no connection with the company, but you claim insight into their intentions.
@Neal: Ah, I was about to email you. Thanks for getting in touch.
That description of what the new User Agreement will look like sounds much closer to the mark. Please let us know when it’s online.
I’ve added an update to the original post to highlight your comment, and will also do a brief post about the change, since not everyone who subscribes to posts will have seen the comment.
@Stilgherrian
Thank you for taking the time to reply to me.
1) The fact that it’s common is the beside point. The point to focus on is that it’s good common business practice to protect yourself in the case of extraneous circumstance. This clause does very well to do so.
2) The assumption is that they are making a ‘naked, greedy grab for intellectual property’. I take the clause at face value, no more. The negative connotations are coming from your post. My post offers no more than a nullification of those negative views.
I make no assumption as to the intent of the company. I simply state that NO assumption can be made based on the clause, positive NOR negative. To claim I’m naive (good job taking the easy way out.. love that word) to disallow myself to jump to negative conclusions without standing to do so is ignorant and no-doubt driven by a sociopath’s perspective (and that’s an educated assumption you can take to the bank).
The clause is no more than a warning that by uploading content you are forfeiting right to it. You have the right to chose not to do so. What would be unethical would be to do so without a fair warning. And this is why we have civil court systems.
I feel you have the right to question a company having the ‘power to do what they will’ with what content you upload. I feel you do not have the right to use that as grounds for a witch-hunt. It’s unfounded.
The only assumption here came from the opening post.
3) To ask your five year old is ‘red herring’? Are you serious? What’s the entirety of the point of our disagreement? Who claims ownership of the IP, correct? If a 5 year old (initial owner of IP) is able to understand the forfeit of the IP (artwork) in exchange for having their work made into a keepsake, then so be it. Your point is officially null at that point, isn’t it? Nevermind the fact that the artwork is likely to have been created in anticipation for such an outcome. The whole idea here is that kids want to have fun and don’t give two flying shits about ‘the man’ showcasing their work to promote the tool used to create it, or the fact that they will have the right to sell their book to other people.
@Stilgherrian
Just saw your latest post. Regarding your right to prepare for whatever you like, see my previous response.
Absolutely, you should understand the consequences of any agreement you sign. That’s not the argument. To publicly deface a company with claims of ‘child labour’ and ‘intillectual property theft’ based on unfounded assumption of a negative misuse of the offending clause is slanderous. Period. I’m not sure why that point is difficult to understand.
(On a side note, please take none of this as a personal attack. My attack is pointed directly at the content of the post, less so at the author. I don’t know you and can’t assume this is common of you or representative of your usual behavior and won’t pretend to have insight there. I’m actually a nice guy in real life, but you wouldn’t gather that from these posts, I’m sure.)
@Lorren Biffin: Oh fear not, nothing is being taken as a personal attack. But I think there’s still a very key difference between how we’re seeing the soon-to-be-obsolete User Agreement.
If I may attempt a paraphrase… You’re seeing it as prudent business practice to cover off all eventualities by claiming all rights. I’m seeing that as too “aggressive”, for want of a better word. I’ve seen plenty of agreements which include clauses which indemnify the site against any liability for damages without taking ownership of the material.
Indeed, I’m wondering if the site were to take over ownership and “all rights” then maybe they’re also taking on all responsibility and risk by becoming the publisher.
Anyway, all a moot point now.
It’s not that moot. There’s still thousands of sites out there with the same sort of clause. Still, I’m now even more convinced it’s usually just there by default. The two times I’ve seen it publicly criticised, it has been immediately removed. Site owners don’t seem too worried about it. I guess the message is that if a site you use has the clause and you don’t like that, write a blog post.
@Alex Willemyns: True. “Moot” only in this instance. I daresay you’re right about “there by default” too.
Many businesses building their first website don’t think about this stuff at all, and just copy boilerplate legal text from another website. The most common example I see is privacy policies which don’t match how a website actually works, or how a business actually handles private information.
The result is often a policy which is misleading or in some cases even illegal — which can get you into trouble of course. But typically if the web developer offers to organise an audit of the policy against practice, or to get a lawyer to review the text, well, it all costs too much.
One of the great disappointments I had growing up was discovering that while the How and Why Wonder Books enthused about the world engineering glories, the reality was that everything was really built in a half-arsed way. Apparently politicians don’t always tell the truth either. Bastards.
it needs to go to a court and be heard by lawyers who actually know what they are talking about, then there will need to be a business code of practice and conduct…
Parts of the T&C are legally invalid outside the US, notably in most of the EU where moral rights (an aspect of copyright) cannot be “waived”. A 5 year old kid presumably isn’t going to litigate but the European Commission might well growl (remember that it’s been prepared to take on Google, Microsoft and the big record companies)
@yeweni: This is actually a problem across the entire Internet industry. Online businesses and tools are evolving very quickly. Company lawyers will, quite naturally, either write T&Cs which are as skewed to the company’s position as possible or which can be written as quickly as possible — often, yes, just copying and pasting text from another website.
I reckon there’s an article to be written some time about the many test cases which have overturned website T&Cs by that very process of actually testing them in court. Indeed, the current AFACT v iiNet trial in Sydney is one such case.
@Fred Smith: 100% correct. Creators’ moral rights cannot be waived or reassigned here in Australia either. According to Australian Copyright Council Information Sheet G043:
Mind you, it doesn’t stop people trying it on…