Twitter CEO Dick Costolo announced June 1 that the company was partnering with Photobucket to make it easy to share photos at Twitter.com. With a “Twitter native photo-sharing experience,” he said, “users will own their own rights to their photos.” The implication? That this might not be the case with third-party services.

Therein lies the real battle over photo-sharing sites: Who owns what?

Twitter’s Sean Garrett (@sg) echoed Costolo’s message in a tweet: “What’s yours is yours – you own your content on Twitter. Your photos will be part of that content.”

Costolo and Garrett were alluding to a virtual dust-up last month in which World Entertainment News Network (WENN) announced that it had partnered with Twitpic to “sell images posted” on the site and “to pursue legal action against those who use such images commercially without its permission.” Although WENN said it was interested only in photos posted to celebrity accounts, the outcry caused Twitpic to back-pedal and revise its terms of service the next day.

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Incidents like this have prompted Seattle attorney Katherine Hendricks to advise photographers to “think carefully about the risk of losing control” over their photographs.

There’s serious, painstakingly Photoshopped professional photography and then there’s the cellphone photo of an airplane in the Hudson River. Copyright is an exclusive right that applies to both types of photos, but according to Kraig Baker, a license is also a form of ownership. And almost every photo-sharing site claims a non-exclusive license to all content posted there. Baker, a lawyer and adjunct professor at the University of Washington, said those licenses “have subtle differences” that can have significant material impact on the copyright holder. One such difference is non-commercial versus commercial exploitation, the kind WENN claimed.

What tripped up Twitpic?

Twitpic got into trouble when it moved from simple TOS to a more complicated one:

You retain all ownership rights to Content uploaded to Twitpic. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’s (and its successors’ and affiliates‘) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.

How does that compare with Twitter’s TOS? (Highlighted phrases are the same or equivalent):

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

If the language makes your eyes cross, you aren’t alone. Baker agrees that the agreements are hard to understand. There are three main areas to check. First, Twitpic claims transferability; Twitter does not. Thus Twitpic reserves the right to transfer its ownership (license) rights to another entity. Second, both extend their rights to their partners. Third, Twitter acknowledges that this license is free; that is, don’t expect compensation if your content is used elsewhere.

Advice for Photographers

Baker advises photographers to think about these things when reviewing a license:

  • the reach (Twitpic and Twitter are both global licenses, worldwide, non-exclusive, sublicensable),
  • the scope (both Twitpic and Twitter claim broad rights to modify and display photos) and
  • any restrictions, such as a prohibition on commercial use (neither explicitly prohibits commercial use and Twitter tacitly acknowledges commercial use is possible in its statement about compensation).

In a blog post last month, Twtipic’s founder said that the intent of the TOS change was to protect Twitpic photographers:

As we’ve grown, Twitpic has been a tool for the spread of breaking news and events. Since then we’ve seen this content being taken without permission and misused. We’ve partnered with organizations to help us combat this and to distribute newsworthy content in the appropriate manner. This has been done to protect your content from organizations who have in the past taken content without permission.

Indeed, in mid-May Mashable reported that photos that Stephanie Gordon took of the space shuttle Endeavour — and that she uploaded to Twitter via Twitpic — had been appropriated by ABC and CBS without credit (or compensation). But the Associated Press paid her $500 for each photo. Gordon wasn’t the first to have a tweeted photo make its way into mainstream media channels without compensation.

Twitter details “display guidelines” in its Help Center:

We welcome and encourage the use of Twitter in broadcast. The requirements below are in place to ensure that Twitter users receive attribution for their content, and to help provide the best experience for those watching your broadcast.

But if credit for your work is important to you, take another look at Flickr, which is about seven times larger (in unique visitors) than Twitpic.

All license agreements are not created equal

Flickr, launched in 2004, has the most constrained terms of the major photo-sharing sites. It also has the most unique visitors of the photo-sharing sites reviewed.

With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo Services other than Yahoo Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo Services solely for the purpose for which such Content was submitted or made available. (emphasis added)

Unlike Twitter or Twitpic, Yahoo limits its license claim to the Yahoo site and further limits the license to the original use. In other words, if someone uploads a photo to Flickr, Yahoo is not saying that the license gives it the right to put the photo on its news site. Because Yahoo has an API that allows third-party sites to display Flickr photos, this relatively limited license does not prohibit out-of-site sharing.

Moreover, in a document outlining the process for permissions requests, Yahoo makes it clear that its license is not as broad as the Twitter or Twitpic license:

Photos and/or images found on Yahoo Images or Flickr are the property of the users that posted them. Yahoo cannot grant permission to use third party content. Please contact the user directly.

Contrast this license with Photobucket, owned in part by News Corp. and similar in both age and audience reach to Flickr. The Photobucket terms of service are among the least favorable of any of the photo-sharing sites. Photobucket grants other site users the same non-exclusive rights as it claims for itself. Moreover, the Photobucket TOS legitimizes using someone else’s photo (differences highlighted):

Photobucket does not claim any ownership rights in the text, files, images, photos … By displaying or publishing (“posting”) any Content on or through the Photobucket Services, you hereby grant to Photobucket and other users a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content marked “private” will not be distributed outside the Photobucket Services. Photobucket and/or other Users may copy, print or display publicly available Content outside of the Photobucket Services, including without limitation, via the Site or third party websites or applications (for example, services allowing Users to order prints of Content or t-shirts and similar items containing Content). After you remove your Content from the Photobucket Website we will cease distribution as soon as practicable, and at such time when distribution ceases, the license to such Content will terminate.

Both Twitter and Photobucket representatives say that any Twitter photos hosted there will be subject to Twitter’s TOS, not Photobucket’s.

Another player with a scale similar to Twitpic, yFrog (ImageShack) quietly changed its TOS after the Twitpic controversy. In a non-dated agreement, the yFrog TOS gives a nod to Yahoo:

The content that you distribute through the ImageShack Network is owned by you, and you give ImageShack permission to display and distribute said content exclusively on the ImageShack Network.

ImageShack will not sell or distribute your content to third parties or affiliates without your permission.

However, Yahoo has another ace up its sleeve: the ability for photographers to customize their rights using Creative Commons licenses. None of the newer, mobile/Twitter affiliated photo-sharing sites offer this option. But in response to the Twitpic controversy, Amsterdam-based MobyPicture told its customer base that a Creative Commons licensing scheme is in the works. There’s a downside to using Moby, however. Currently Twitter does not offer image preview for Moby photos on Twitter.com like it does for Flickr, Twitpic and yFrog.

Most of Twitter’s traffic comes from third-party applications, not its website. Therefore, at least in the short term, Twitter’s partnership with Photobucket will affect only a fraction of its customer base. In the meantime, read the fine print and check your photo-sharing site TOS often. Many have no dates, and it’s common for them to change without notice.

Then think about what the word “ownership” means to you. In an age of user-generated content, the tensions that underpin the Twitpic controversy will not go quietly into the night.

Click here for a detailed comparison of the terms of service for 16 photo sharing sites and see additional statistics below.

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Kathy Gill has been online since the early 1990s, having discovered CompuServe before Marc Andreessen launched Mosaic at the University of Illinois in 1993. In 1995, she built and ran one of the first political candidate websites in Washington state. Gill then rode the dot-com boom as a communication consultant who could speak web, until the crash. In 2001, she began her fourth career as a full-time academic, first teaching techies about communications and now teaching communicators about technology. At the University of Washington, she teaches undergraduate digital journalism as well as classes in the Master of Communication in Digital Media program. For almost five years, she covered politics for About.com; for three years, she covered agriculture.

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