Should start-ups get permission to use blogger images?

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!

 

Leave a Reply

Your email address will not be published.

25 Responses

  1. Cate

    I’m not sure how this WOULDN’T be illegal. I’m not really sure how Wantering profits from this, but if they are in fact profiting using essential the endorsement of popular style bloggers without their permission or proper compensation, sounds pretty illegal to me.

    Reply
  2. Kelly @ Alterations Needed

    My main concern with Wantering is, how do they intend to monetize as their site grows? They are linking to lots of products, so my first inclination is they plan to monetize through affiliate links (my first guess would be Skimlinks like Pinterest did), in which case using the blogger’s photos for a profit.

    Reply
  3. TheStyleKaleidoscope

    The basics of copyrights are simple. If you create a piece of work, you own the rights to it, regardless of the internet being in existence or not. The internet is every photographers nightmare at the moment.

    A photographer who took images of Edie Sedgwick wanted to release a book. But his images were found on several Edie tribute blogs on the internet. When the book publisher contacted the bloggers, they received an aggressive response from the blog owners, stating that it’s personal use only & they were not making money from using the photos and they had no intention of removing them as a result. But the problem is, if you have taken a photo and it’s all over the internet like cow mess in a field, you need to get it removed. And it’s your perfect legal right to do so. You are the only person who should be making money from your shots, and there’s also the legality around the subject featured in your photo, too.

    I had a company that’s similar to the one mentioned in this article contact me about my street style shots. As I listed where some of the clothes were purchased in my posts, they wanted to use my shots to help them sell clothes through their website. I didn’t even respond. In case they hadn’t noticed, some of the girls in the photos are under 15. If they want to deal with the parents and legal guardians if they use my photos without permission, then let them. My copyright page on the blog is pretty clear. Mine are mostly pictures of people, not cups of coffee or whatever, so I’m pretty protective about where they end up and how that person is represented. While they understand they might end up being added to pinterest etc their parents don’t want to see them elsewhere and neither do I.

    Reply
  4. Nicholas Molnar

    I’m the Nick Molnar interviewed in the article. I won’t split hairs over all the legal details, because I think there’s a bigger and more interesting story here. What we’re doing with Wantering is unlocking a totally new source of value in the fashion blogosphere. That’s why after personally reaching out to 90+ of the bloggers who are featured on the site, only 2 asked to have their content removed. At least a dozen have now asked how they could get more of their posts onto Wantering.

    We’re creating a new way to shop that takes the best parts of blogs, fashion social networks, and search engines, tosses them in a blender, and makes a delicious smoothie out of them. It doesn’t take away from the hard work that fashion bloggers do, it adds to it.

    These are also the very earliest days for Wantering. It’s great that Taylor brought these issues to the surface and there can be an open and frank discussion about them. We want to do right by bloggers, and we want to help the ecosystem grow.

    We’re always looking for feedback on how we can reward and promote bloggers better. If you have any suggestions, don’t hesitate to get in touch at bloggers@wantering.com or jump into the comments. We’re listening.

    Reply
    • Catherine

      What I find problematic about the Wantering business model is that many bloggers earn commission off of the items they sell through sites like Reward Style. In order to earn commission, buyers must click on specific links in order to credit bloggers for their sales. What your site is doing is cutting out that process of earning commission, unless someone happens to click the small URL placed in the corner of the image.

      I think your model would be more ethical if it operated, as @alexandrawrote said below, using an “opt-in” rather than “opt-out” method. The difference with Pinterest is that the image being used is almost always linked back to the blog rather than the product, or so it has been in my case. Therefore, if people want it after seeing your image, they are directed to your site.

      I understand that what you think your site is doing is making it easier for people to shop online, or to be inspired – but in doing so, it takes away blogger independence to manage our own content.

      Reply
  5. Nicholas Molnar

    @Kelly, thanks for the heads up on the broken link. Growing pains of a new and popular site, I’m afraid. I’ve fixed that one, and we’re working on fixing the rest.

    Reply
  6. Monica

    This is the fear of many blogger moms, that images of our children will be splattered across the internet without our permission. I find great products for my daughters all of the time but I’m afraid to post her in a great pair of shoes or a cute new headband. While it might seem pretty harmless now, I think it has bigger implications, not to mention that bloggers work hard and this site is trying to benefit from the bloggers work without actually building any content themselves. However, I also think if they make some modifications, it could work for the blogger and the company. My hope is that they will find a way to make it. It seems like a good idea but with poor execution.

    Reply
  7. Eli

    This is the Chictopia thing all over again?!

    Also, this sounds eerily similar what recently went on with Hello Cotton!

    Reply
  8. Moe

    I think this has to be delved into more. It is not just straight copyright infringement here. I don’t think they are copying and pasting the images from blog sites which is what we typically associate with an infringement. If they are using a RSS aggregator there may be different rights involved for whatever one is used on a bloggers site. In using the feed, or having the feed on the site there may be some kind of permission loophole in effect that bloggers are unaware of. I am not certain just thinking out loud. It is something worth delving into.

    Reply
  9. Kat

    I think that bloggers all need to get credit where credit is due. I also think Helena from Brooklyn Blonde is right about getting compensation. We’ve worked hard on taking these photos, spent the time on editing them, writing the content, and constructing these outfits.

    Perhaps for a newbie blogger, like myself, it would be okay to the extra exposure. But for our veteran bloggers, I think they deserve more than just extra traffic.

    Reply
  10. Synthetic

    I think there is more room to giving bloggers credit. I mean, we work hard to craft our content! Some of my content is artistic\ very original and it’s not just about the time and effort I put into it, but it’s also about years I spent perfecting my skills.
    Most of these sites are commercial. I like exposure as much as the next blogger, but I’m not OK with people making money off of my images without permission.

    Reply
  11. @alexandrawrote

    There are rules for start-ups. They are the same rules that apply to anyone using intellectual property online – you can only use what you have the copyright or permission to use. Those are simple rules to follow, but they’re ignored.

    Using only what you have permission to use isn’t complicated – but it requires people respect IP.

    The more posts like this are written, the more people say “it is not a given that what I place online is automatically yours,” the more this moves in a better direction. If start-ups worked with bloggers in an opt-in rather than opt-out way, great things could happen.

    I write about this all the time – and am happy to see the conversation here, too. I believe the internet could be pretty fabulous if a few rules were followed. I believe it can be.

    Reply
  12. Kaya-Quintana

    They really should ask permission to use the images. They forget someone has put a lot of hard work into them. I think it’s rude just to take images without asking.

    Reply
  13. Shoeperwoman

    I’m really glad I read this article, because having looked at the site, I see there are several photos of me on it. Wantering have never asked my permission for this (most of the images used are actually all watermarked with my blog URL and a copyright symbol, but that has either been cropped out or just doesn’t appear in the thumbnail they’re using, I’m not sure which), and even if you’re prepared to overlook the fact that they’re knowingly infringing my copyright, it does makes me feel uncomfortable to discover that my face/body/clothes are essentially being used to profit someone else’s business. It seems disrespectful. Yes, they’re linking back to me, but having just checked Google Analytics, Wantering doesn’t appear in the first 15 pages of referrers, so any traffic they’re sending me is negligible, and that makes me wonder what the benefit is to me of appearing there. As other people have said, I put a lot of time and effort into my photos, and I don’t do that so that some other business can profit from them.

    I do think, though, that this kind of thing is becoming so commonplace that it’s becoming harder and harder to know where the line lies. Sites like Pinterest (as much as I enjoy it) and Tumblr just normalise the idea of content theft, and encourage people to think that if it’s OK to pin someone’s image, or re-blog it, then it must be OK to re-publish or use it any other way you like, too. There’s also an alarmingly large number of people who seem to think that linking back to someone’s image makes it OK to use it, which just isn’t true.

    With all of that said, I’ll need to do a bit more digging about this site to know how I really feel about it. My initial reaction, though, is that it wasn’t great to see my content on someone else’s site, and that I can’t see any real benefit to me of them using my images. I will be very happy if they can prove me wrong, though!

    Also, just to answer @Moe’s point: in my case at least, it IS just straight copyright infringement. There is no grey area there. My images are copyrighted, they SAY they’re copyrighted, they don’t appear in my RSS feeds, and I haven’t granted rights to this website to use them.

    Reply
  14. The Style Kaleidoscope

    I agree with the other comments here about our own unique content – we’ve not placed it on the internet for companies to make a profit out of. I used to work as a music photographer & I’ve seen newspapers use photos without permission and get sued for it. This is no different. Permission is the key word here. If companies don’t ask for it or get it, that’s like me making tshirts from images I find online & selling them for money. Eventually I would get successfully sued. I just want to point out its not just happening on the internet it’s also happening in print. Make sure you have a Copyright page on your blog that fits your needs.

    Reply
  15. Olivia Muniak

    I think if we have a blog up the images and their correlating content is for public use and viewing. But it is unethical to be using the images/content without properly crediting the origin. Super lame in other words.

    To be in the beginning stages of creating a business off of other peoples content is risky if it was unapproved.

    Reply
  16. Bloggers Usually Violate

    Most fashion designs/logos have Trademarks but bloggers still don’t get permission in advance or consider that when posting.

    Reply
    • Catherine

      It isn’t remotely similar. Firstly, it is very hard for fashion “designs” to be trademarked. Logos, yes, but the primary purpose of trademarking isn’t to keep people from talking about, even displaying the logo, as long as it is associated with the trademarked brand. Trademarks exist so that some other fashion company or random individual doesn’t call itself “Chanel.” If people weren’t allowed to blog about trademarked brands or products, how would honest reviews about companies ever get written?

      Plus, I think there is something to be said about the fact that images from most fashion brands feature public figures (ie celebrities) and famous models that are instantly identifiable. Even in the instances where proper credit isn’t given (not necessarily condoning this) most people know where it’s due. Bloggers don’t have that same notoriety.

      Reply
  17. Shoeperwoman

    Sorry to come back to this after writing so much the first time, but I’ve looked into this some more and have now found that some of my images have been pinned to Pinterest from Wantering too, so as well as my content being on their site without permission, it’s now all over Pinterest, with no link back to me, and Wantering benefiting from the Pinterest traffic. I’ve now emailed Wantering to ask them to remove all of the content they’ve taken from me…

    Reply