Last week, Gabi Gregg of Gabi Fresh received an unusual email that left her feeling concerned and very curious.
The email was from the founder of a new site launched in March 2012 called Wantering.com:
“…We've got a computer program that's working to find the most interesting products on the web, and we've been using your blog as one of our recommendation sources, since you've got terrific taste. Your stuff has been faring really well on the site, and now you're one of the most popular voices in our network. You can see a few of your posts we found here or here…”
Wantering aggregates popular shopping items from across the web, then illustrates them with images from sites including Svpply, Polyvore, Pinterest and personal style blogs, to create a very visual, shop-able landing page. From there users can purchase an item shown in a particular photo through a link, or visit the original source of the content.
Nick Molnar, one of the co-founders of Wantering, says their site “is a search engine. We go out and try and find the best products on the web on behalf of our users.” It's no surprise then that top bloggers such as The Glamourai, Brooklyn Blonde, Style Bubble, Atlantic-Pacific, Wendy's Lookbook, …Love Maegan, On The Racks and Late Afternoon are used as sources.
What is surprising is that none of the bloggers we contacted seemed to know about the site prior to receiving an email similar to Gabi's. How could a site be using images from so many blogs without consent? Is it legal whether or not the websites profit from the bloggers?
According to Quinn Heraty, an attorney specializing in intellectual property law at Heraty Law PLLC, maybe not. (Her comments are based on observation, not any prior knowledge of Wantering's relationships with bloggers).
There are three important pieces of law to consider when looking at the issues with Wantering (and the photo-sharing on the internet in general):
- Copyright Law: Copyright is a set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. The U.S. Copyright Office web site states, “Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”
- Privacy and Publicity Rights: According to the Library of Congress, “privacy and publicity rights protect the interests of the person(s) who may be the subject(s) of the work or intellectual creation.” This means that an advertiser must obtain permission from the subject of a photograph in order to use it commercially, because the subject has retained both privacy and publicity rights in the use of their likeness. For example, a site cannot use your image, wearing Bag X to sell Bag X, unless you give permission.
- Fair Use Doctrine: The part of the doctrine that applies here is: Some material protected by copyright may be reproduced without permission of the copyright holder if it meets certain qualifications (editorial, educational, etc.) That roughly translates to: if an image is being used in a creative context, to illustrate a point, show a trend or something you like (and it's credited) – it's usually okay. When that image is used for commerce without consent, that's not Fair Use.
After spending some time browsing the site, Heraty said that Wantering's use of bloggers' images could be in violation of their Privacy and Publicity Rights, and also may not qualify as Fair Use. We all know that images are reused, re-posted, and recycled around the internet, and there isn't much we can do about it, and for the most part – it's harmless. According to Molnar, “The blogger's endorsement of the product is already out there on the public web. All we are doing is organizing that information.”
What Molnar is saying essentially is that because their site is not directly selling the items (they provide a link to a retailer), what they are doing is along the lines of how Google, Pinterest and Tumblr gather and store images. In this way Wantering is not directly violating Privacy and Publicity Rights of the bloggers, because their site specifically is not an advertiser, and not selling the pieces bloggers wear.
So, what should bloggers do if they find their images on a site and don't approve of their use?
In the case of Wantering, Molnar said bloggers can send an email over to them letting them know if they would like to opt out of Wantering's curation. As a publisher who creates original content and photography, under Copyright Law you have the right to control how your work is used, so if polite contact fails, you can send a Cease & Desist letter.
We asked for feedback about Wantering from some of the bloggers who were featured, and we want to know what you think, too! Do you think sites like these should ask permission before using bloggers' images?
“I never know what to think about these type of sites because if they're profiting off our images/items we're wearing, then I'm completely against that. Especially if the blogger is not getting a percentage of that, regardless if they're generating traffic to our site. With that said, if there's a mutual agreement and both Wantering and the blogger are benefiting, then that's a different story.” – Helena Glazer, Brooklyn Blonde
“I get a huge amount of traffic from Pinterest, so I'm fine with that but at this site, while they do link back, it's in text form and very small at the top of the image. I'm not sure what I think about it though. I mean, more exposure is good but without the photo link back, I'm not sure if it will actually do “me” any good.” – Maegan Tintari, …Love Maegan
“I am kind of passive with this stuff, and if it links back to me and I am properly credited I don't really care that much. I can see how it is a little bit troublesome if they are actually making money and selling product off of my pictures though. If they had asked my permission I would definitely be fine with this, but it is a bit bizarre to have my images up there without my permission.” – Laura Ellner, On the Racks
This type of situation between start ups and bloggers is not uncommon, and Wantering's goals harken back to a similar situation with the now-defunct site FlipGloss.com back in 2009, that was monetizing street style photos. (You can read Jennine's post here.) There aren't currently any rules to regulate how start-ups use blogger images, but should there be?
**Update (5/1/12): Wantering has heard you! In a recent Tumblr post, Nick Molnar discusses some very positive changes to the way Wantering works. In part, “…we are moving to an invite-only model. Select bloggers will be receiving an email in the next few days offering them invites to be a part of Wantering. Any blogs that have not opted in to the system will have their photos on Wantering replaced or removed later this week.” We recommend reading about the rest of Wantering's changes, including their photo attribution updates.
Share your thoughts and experiences in the comments!