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Q: I heard about Twitpic commercializing user-uploaded photos and became curious. There are alternatives out there, but what are the chances they all have similar terms of service? Is there any service that isn't my own website that won't commercialize my photos? Is this just a standard agreement, or what?

You're correct about Twitpic commercializing user photos: the company recently announced that it was the "exclusive photo agency partner" of the World Entertainment News Network (WENN). This agreement allows WENN to sell images uploaded to Twitpic and to pursue copyright action against parties who try to use those images commercially without authorization.

Theoretically, this means that a photo that you upload to Twitpic of your cat wearing a Poptart box as a hat could be sold by WENN to the Nyan Cat Empire for marketing purposes without them asking for further authorization from you. In reality, the company is unlikely to be interested in photos taken by plebes by us—WENN wants paparazzi-type pictures of celebrities, not whatever you ate for lunch today.

Still, it's a good question, and increasing numbers of Internet users are becoming more conscious of the terms of service (TOS) on sites that they use regularly. So, I looked up the TOS for all seven of the image services that Twitter's native app recommends when you first begin using the app: Twitpic, yfrog, img.ly, Posterous, Mobypicture, Lockerz, and twitgoo. (Yes, Twitter has announced that it will begin using its own image service, but plenty of people are still using third-party services for a variety of reasons, and not just for Twitter.)

Of the seven, three services include language in their TOS that indicates that they reserve the right to distribute your photos. Two sites explicitly do not retain that right, and two remained ambiguous (they did not specify on either side). Let's compare:

Sites that specify that they'll only use your photos on their site: Mobypicture, yfrog, Posterous

Mobypicture, yfrog, and Posterous all specifically say in their respective TOS that only you own the rights to your images. Some of them throw in the legalese to specify that you are granting them rights to distribute your photo on their website(s). That part is not uncommon—if you uploaded an image to yfrog, you want yfrog to display it to someone when you send that person a link to your image, and the sites are trying to explicitly spell that out.

Here's what they all say, starting with Mobypicture:

All rights of uploaded content by our users remain the property of our users and those rights can in no means be sold or used in a commercial way by Mobypicture or affiliated third party partners without consent from the user.

Posterous:

Posterous reserves the right to filter any content posted and remove objectionable posts without notice. Posterous may also cancel accounts for users who violate the Terms of Service. Posterous respects your copyright. You retain full copyright of any original content that you send us. By posting to Posterous, you're granting us a license to distribute your content on this site.

yfrog:

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. You may revoke this permission at any time by requesting your content to be removed.

All three of these are pretty straightforward and spell out directly that they won't be doing anything with your photos that you don't explicitly allow.

Sites that retain the right to distribute your photos elsewhere: Twitpic, Twitgoo

Both Twitpic and Twitgoo acknowledge that they don't own your content—you retain ownership no matter what—but you do grant them a nonexclusive license to use your photos on their respective sites. As we outlined above, that part is standard and expected out of most sites that focus on user-generated content.

However, they both also specify that they might use your photos on mediums that are not their own websites. From Twitpic's TOS (emphasis added):

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.

Similarly, Twitgoo's TOS reads:

By displaying or publishing ("posting") any Content on or through the Twitgoo Services, you hereby grant to Twitgoo 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.

We already know that Twitpic has entered into a deal to commercialize photos, so the intent there is pretty clear. When it comes to Twitgoo, the company might have plans to do so in the future, might be working on its own deal with companies like WENN, or may have no plans at all and just included these lines as part of a default legal agreement. Such a practice—including extra legalese without any actual plans—isn't uncommon, intellectual property lawyer Denise Howell tells Ars.

"This can happen for a number of reasons: one, the 'just in case' rationale, two the assumption that users don't read and won't catch or make a fuss about overbroad terms of service, and/or three the drafting lawyers and their clients didn't have sufficiently clear communication, or didn't pay enough attention to how the terms as drafted would work," Howell said. "I don't see these problems going away any time soon, except it's certainly foolish in this day and age for businesses to rely on #2!"

So, while (again) it's highly unlikely that your own photos will end up being sold to a tabloid, the language is in there—just in case.

Sites that don't specify: img.ly and Lockerz

These guys' terms of service (img.ly and Lockerz, respectively) don't directly address your rights as a content-creating user at all—they only specify their own rights when you use their service.

Because they don't specify, you can safely assume that img.ly and Lockerz generally take the same stance as Mobypicture, yfrog, and Posterous: by default, you own the rights to your own images that you create, but you implicitly give these companies the rights to publish your photo on their own website when you upload the photo there. Since they don't inform you that they might publish your photos in other media channels or formats, they probably won't.

For what it's worth, Imgur (which is not officially peddled by Twitter's native client, but is quite popular on sites like reddit) also seems to fall into this category.

Why should you care?

Aside from being well-informed—which is hopefully reason enough—you should care because the Internet is increasingly becoming media-rich thanks to regular users like you uploading photos and videos. Howell pointed us to a blog post by Scott Bourne addressing similar issues as they relate to online video services, and says that her comments from that post still hold true:

The situation at the moment is less than ideal from the user/consumer/customer standpoint. The scopes of licenses concerning user submissions are all over the map. While some licenses are narrow, most are broad. There’s little consistency—except to the extent sites tend to emulate forerunner sites with similar business models—and the only accountability right now is being prompted by vigilant users like you. Given this uncertainty and the real risk photographer or videographers might find themselves granting broader rights than they intend, it should go without saying that it pays to read before you click or upload, and if any red flags pop up, investigate further (and possibly seek legal advice) before proceeding. The best leverage users have right now is the ability to vote with their feet.

Indeed, among those who are trying to get started or make a living from their own photography or videography, these concerns are even more pronounced. So keep your eyes and ears open, and don't hesitate to let these services know why you're choosing them (or not, as the case may be).

Listing image by Image via Flickr user "alt text"