Previous on my site, I discussed the benefits of embedding images into your blog rather than hosting them yourself.
But while there are many reasons to embed your images, there are also reasons to think twice before doing so. Posting your images on a third party site, such as Flickr, PhotoBucket or Webshots provides you some protections, but also costs you some rights. By introducing a third party into the equation, you subject yourself to a whole new set of licensing terms, some of which may cost you dearly.
That’s why, before uploading your image or other media to your favorite hosting site, it is worthwhile to take a moment and understand what rights you are giving up and decide if it truly is worth it.
The argument in favor of embedding is fairly simple from a copyright standpoint. By offloading your images and media to a third party service, you guard yourself against false copyright notices.This is especially important if you post images that you didn’t create such as screenshots, logos or even Creative Commons images as other copyright holders, depending on their demeanor and opinion of your work, might be motivated to demand takedown of the work, no matter how “fair” your use likely is.
Should a copyright holder decide that your use is infringing and wish to file a takedown notice, they would be forced to file the notice with your image host, not with the host of your blog. Even if the image is taken offline, the rest of your site is safe. This gives you the chance to respond and seek legal council and formulate a response without the pressure of getting your site back online.
Though false or questionable DMCA notices are actually extremely rare, they are worth mitigating against if you post material that might attract such attention, especially if it might cross paths with a party known for filing such notices.
However, it is the bandwidth and space concerns that drive most bloggers to embed their images. Though most paid hosts provide enough space to easily host all of the images one could want to upload, free blog hosts and social networking sites have sharp restrictions on what you can upload and often place caps on bandwidth. In those cases, offloading images, especially larger ones, might not only allow you to expand your site, but also protect it against being closed due to overages.
However, all of this site protection comes at a pretty steep cost, you give up rights in your images. While not a large deal for some bloggers, others will be made very nervous by the rights they surrender when they hit “upload”.
Whenever you upload your image to another service, you surrender certain rights to it. Some of these rights are necessary in order to display the image but some companies also claim a wide set of rights, many of which go beyond the intended scope of the arrangement.
For example, uploading an image to Webshots grants them, as well as their parent company and affiliates, a “nonexclusive, irrevocable, worldwide, sub licensable, royalty-free license to use, store, display, publish, transmit, transfer, distribute, reproduce, create derivative works of and publicly perform that Content on and through each of the services provided by Webshots.”
In short, by uploading your image to Webshots, they can do almost whatever they wish with your photo, license out their rights to other parties and there is no way terminate the agreement as the rights are irrevocable. Once you have uploaded an image to their service, they retain their rights in it, even if you close your account, and can pass those rights on to others.
Much of the time, these rights grabs are designed to simply protect the company and prevent them from having to relicense all of their old content should they get into a new line of business, such as mobile media, slideshows, etc. Webshots seems to be such a case as they go on to say that your images “will only be used by Webshots in the same way they have always been unless you give us permission to do something else with them.”
However, not all sites demand such rights from their users. Flickr, for example, limits their rights “solely for the purpose for which such content was submitted or made available” and allows users to exit the agreement simply by removing their works from the site.
But while Flickr certainly seems to be one of the fairest with its licensing, at least one company is not only claiming a wide range of rights, but exploiting those rights for profit in a means that many may never have intended.
On the surface, PhotoBucket’s terms of service seem pretty basic, claiming a standard set of rights and allowing you to exit the agreement by simply removing your works. However, buried in the third part is a sentence that says the following:
In addition, where you have made your User Content public, posted a link to your User Content on another website or otherwise shared a link to your User Content, you grant to Photobucket a nonexclusive, royalty-free, worldwide right to sublicense the right to copy, modify, prepare derivative works from, and distribute your User Content as necessary to perform the Services, including without limitation the printing services offered by Partner Sites.
What it means is that, if your account is not set to private and your images a publicly available, PhotoBucket has the right to sell prints of your images through their partnership with Qoop. Though Webshots and Flickr both partner with Qoop as well, they restrict printing to a user’s own images. With PhotoBucket, any visitor can print any publicly available image and neither PhotoBucket nor Qoop is obligated to pay you.
This raises a series of issues, both ethical and legal, and has become the subject of a petition by artists, which has gartered nearly 6,000 signatures as of this writing.
PhotoBucket responded to these issues saying that it is “committed to protecting and empowering content owners and creators” and that their site “offers features that give users the ability to set private and public settings for their photos and videos.”
However, PhotoBucket currently has no plans on changing the system and the only way to avoid having your images be available for printing is to set your account to private.
The safest route, in terms of your rights, is to simply not embed your images. However, that may not be practical and it could expose the rest of your site to unnecessary risk.
Instead, a better approach would likely be to keep your personal creations close to home while embedding anything that might be seen as a risk. Posting screenshots, logos (without claiming any relationship to the logo creator) and clipart are generally accepted practices on the Web but could expose you to copyright or trademark risk from an overzealous rightsholder.
In those cases, posting works to an image sharing site are no great loss as you don’t hold many, if any, rights in the work and are only using them under fair use or a Creative Commons License. However, if you do so be certain that the images are not publicly searchable if it all possible. Using a service such as AllYouCanUpload ensures that only your use of the image, on your site, can be seen.
However, if embedding your own work is unavoidable or still preferred, there are a few things you can do to minimize the rights you give up. Specifically, you can read the terms of service carefully and look for the following things:
- What rights are you surrendering?
- Are those rights transferrable or sub-licenseable?
- How do you exit the agreement?
- What kind of warning is offered before the terms change?
- How are disagreements handled? Is there forced arbitration?
If you look through the terms of service, understand what your rights are and shop around for the host that demands the least of you, you should be at least doing better than most who simply click right past the terms and skip straight to the fun part.
When it comes to clicking past the terms of service, I am as bad as anyone. The terms of service at most sites are written by attorneys for the sole purpose of holding up in court. They were never intended to be easy to read and the mere thought of sitting through one makes just about anyone’s eyes glazer over.
However, those terms contain more than just a set of guidelines that you, as a user, must follow in order to use the service. Rather, it also contains a list of rights that you surrender when uploading your work or using the site.
Though there is nothing fun about reading a terms of service, understanding the rights you surrender is critical not just to protect your rights in your works, but also to protect your readers and others from using a bad service unaware of the potential risk.
All totaled, the actual risk of abuse from an excessive terms of service is very low, but given the nature of some of the terms of service, that risk can last for as long as the work is protected by copyright and can include rights that photographers and artists would like to reserve exclusively for themselves so they can profit from their work.
Given the nature of the risk, even if it is a rare one, it is worth addressing, especially since it only takes a few minutes to read a terms of service.