Update 4/21/2010: Sadly it appears I spoke too soon. Flickr is still stripping EXIF data on resized images. Update coming.

Though the orphan works bill has been defeated for this year, there is still a tremendous amount of interest among visual artists about ensuring that their works carry their names and information with them. It is largely assumed that the bill will be reintroduced next year and that, at some point in the near future, that there will be a risk of their works becoming orphaned.

However, in the age of the Internet, photographers have also become more reliant on photo sharing services for hosting their work and their online portfolios. It has been an easy way to get their works online and find an audience.

Unfortunately, at least some of those services seem to be working against artists in keeping their works clearly marked. Though many routinely insert EXIF metadata into their images, at least two of the most popular image hosts, Flickr and Facebook, are routinely stripping that information out before posting the information online.

This could, should the orphan works bill passed, cause many photographers, including those that used due diligence in marking their work, to have their works become orphaned and used legally without their permission.

The worst part is that it is a simple fix on the host’s part, but also one that Flickr has been aware of for at least six months.

Background

Back in April, photographer James Duncan Davidson posted a blog entry detailing an error with Flickr that caused copyright and other metadata to be stripped from uploaded and resized images. He also posted his observations to Flickr’s feature request forums, where it became a popular suggestion.

However, even after over six months of activity, the post has not gotten a single response from the Flickr admins nor has the feature been implemented. So, I decided to conduct an experiment to see if Flickr had quietly instituted the fix and also see if a few other popular image hosts had similar problems.

The results were very surprising.

An Experiment

To conduct an experiment, I took one of my snapshots from my trip to Newcastle, UK and added some very basic copyright metadata to it. To do this, I used the open source application Reveal for the Mac.

After I added the metadata, this is what was shown in the photo information.

I then uploaded the image to some of the popular photo sharing sites and re-downloaded the image to see if the metadata remained intact. I started with Flickr.

After uploading and re-downloading the displayed copy of the image, I noticed that the file size was significantly bigger but, once I opened up the metadata in Reveal, this is what I saw.

The new photo had completely stripped out the pertinent copyright information, along with all of the other metadata that I could see.

After that, I decided to try Facebook. With over 10 billion photos hosted, Facebook is the largest image host in the world currently. I did the same process with Facebook and, when I re-opened the metadata in Reveal, I saw that, again the information had been stripped out.

It was immediately clear that both sites strip out all image metadata. Though Flickr does make a point of reading and parsing much of it, especially information pertaining to the camera, before posting it, none of it is displayed on the versions that are public-facing.

Two that Preserve it

After being disappointed with Flickr and Facebook, I decided to try two other image hosts to see how they handled the metatadata. First, I tried a host that I have used in the past on this site, Imageshack.

With Imageshack, I did two checks, first I uploaded the image without resizing and then with a reduction to a “Web-friendly” size. I downloaded both versions. In both cases, the metadata was preserved.

I then decided to try Photobucket, an image sharing service I continue to have many sharp disagreements with, taking a similar set of steps that I did with Imageshack. However, once again, both the raw and the version resized with their online software preserved the metadata perfectly.

While I have many other copyright-related concerns regarding Photobucket, it is nice to see that their system does handle this one issue correctly.

Still, for photographers, these results leave a lot of uneasy questions to be answered.

What Can Be Done

The problem with the results above is that neither Photobucket nor Imageshack are widely used by professional or even amateur artists. They are much more common as image hosts for blogs or social networking sites and host a lot of personal photos as well as more than a decent amount of copyrighted work.

However, there are a lot of photographers and artists putting their work on Flickr to share it or using Facebook as something of a personal resume. In those cases though, any metadata that they are adding is being stripped out before at least most of the images go online.

The onus, right now, is on these services to fix this problem but there seems to be very little push to do so. As such, the only way to ensure that your copyright information is carried with the works you submit through these services is to make it part of the image itself, most likely through some form of visual watermarking.

Until these issues are fixed, artists have to assume that any image posted on Flickr or Facebook will be passed around the Web with no identifying information, greatly increasing the probability that they could become orphan works should the bill pass.

Conclusions

Sadly, these aren’t the types of issues most image hosts think about when designing their product. They worry about providing a good user experience, giving enough space, having enough features and building a good business plan. Whether the metadata is preserved, is not a major issue from their standpoint.

However, to me, these are the types of small details that can have a big impact on artists and separate the great image hosts from the good.

Though Flickr has made a great reputation as a place for artists and photographers, it has shown a lot of disregard for their rights. From snafus with the API to confusing licensing terms, Flickr has been anything but an oasis for artists concerned about how their work is being used.

If the orphan works bill passes, these issues will go from being minor inconveniences to major concerns and all image services are going to have to address these problems, one way or another.

However, the time to start thinking about these things is now, before the law passes and a potential crisis is at hand. Waiting until the law does pass could be too late.

Differences between the sites became clear as sites with more money, and thus better access to legal advice, had much more complete policies than those with more humble means.

However, social news is not the only growing segment of the Web. As digital photography and online artwork has become easier and more accessible, photo sharing and image hosting services have also grown rapidly in size.

However, the boon in online image hosting has also given birth to a sharp rise in image theft. Now, anyone with a Flickr account can trivially download an image and post it to the Web. There’s no need to have a Web site at all and the image can be embedded anywhere desired, including on social networking sites.

This has made the copyright enforcement policies of these image sharing sites especially important because, without cooperation from the major players, this type of plagiarism can go unchallenged.

So, I’ve decided to continue my analysis of DMCA policies on various sites by reviewing the policies of seven of the top photo sharing sites including Photobucket, ImageShack, Flickr and more. Here is what I found.

Format: Email
Email Address: abuse at photobucket dot com
Location of Policy: Copyright and IP Policy
Registered with USCO: Yes
Comments: Robust and to the letter of the law, Photobucket sets a very high bar for its competitors. Not only is its DMCA policy complete, including counter-notice information, but the site also offers similar policies for violations of trademark and privacy. The only complaint I can offer about their policy is that it is difficult to find. It is not included in their contact information, but rather, in the footer of their terms of service. A link to the policy, as well as information on reporting other abuse, should probably be located in an easier to find place. Still, the policy itself is very sound and offers great information for anyone looking to file a notice or counter-notice with the company.

Format: Form
Email Address: See Form
Location of Policy: None
Registered with USCO: No
Comments: In stark contrast to Photobucket, ImageShack completely lacks a formal DMCA policy. Though they provide a Web form to report infringing images, there is no other contact information (fax, email, address, etc.) and no guidance on filing a notice. Reports from others who have filed DMCA notices with Imageshack have indicated a spotty record on acting on infringing material when notified by this means. Worse, the default template of the abuse form is woefully inadequate to report copyright infringement in accordance with the law and, as of this writing, ImageShack has not registered with the U.S. Copyright Office. Though their relatively short terms of service mentions copyright three different times, their overall policy shows a general lack of planning.

Format: Email
Email Address: copyright at yahoo-inc dot com
Location of Policy: Yahoo’s Copyright and IP Policy
Registered with USCO: Yes
Comments: Owned by Yahoo, Flickr shares its DMCA policy with the search giant. Yahoo has had a strong and robust policy for as long as I can remember for both its search and other hosting properties. Flickr benefits greatly from that experience. The information provided is short but complete, the policy is easy to find, located in the footer on every page, and provides all of the necessary information. Though the lack of counter-notice information is somewhat worrisome, that is likely something they handle when communicating directly with individuals that have been served with DMCA notices. All in all, it is a well-rounded and simple DMCA policy that is more or less what you would expect from Yahoo.

Format: Email
Email Address: copyright at webshots dot com
Location of Policy: Copyright Violation Policy
Registered with USCO: Yes
Comments: Owned by CNET, Webshots has a very simple but effective DMCA policy. Located in the footer of each page, the policy goes through the basics of providing a DMCA notice to the site and offers up all of the necessary information to get in touch with the designated agent. The site is also registered with the USCO. The only concern I have with Webshots is that they repeat the information in their terms of use but provide different contact information (the TOU says “General Counsel” while both the USCO filing and the IP policy directs it to the agent). Also, the IP policy in the TOU omits the email address. However, that is likely an oversight and, in general, their DMCA policy is very complete and well done.

Format: Email
Email Address: copyrightagent at smugmug dot com
Location of Policy: “Copyright Complaints”, Terms of Use
Registered with USCO: No
Comments: The only paid service on this list, SmugMug has one of the most unusual copyright/DMCA policies. Buried in the terms of service, where it is very difficult to find, the policy can be best described as “short but sweet”. It covers the basics including the agent’s contact information and the required elements of the notice but doesn’t offer much else. Strangest of all, the terms of use do not make any mention about copyright infringement being a violation of their terms and, outside of the policy, the only mention of copyright at all revolves around the protection of their own works. Perhaps even more disheartening is that they place their own copyright warning above their DMCA policy, thus highlighting their own protections before discussing their DMCA information. This site is not registered with the USCO and, though the policy is complete, it seems, in general, to be more of an afterthought.
Update: I spoke with the general manager of SmugMug. He was very grateful for this review and has already sent off his application for USCO registration in response to it. Also, he pointed out that their terms of service does make mention of copyright under their “License Granted by Users” section. They were planning on reworking their terms before this article and will likely rearrange it to make it more clear. Still, not seeing that was my mistake and I apologize.

Format: Email
Email Address: infringement at snapfish dot com
Location of Policy: Copyright Infringement Policy
Registered with USCO: Yes
Comments: A very basic policy. Provides the information required including the contact information for the agent and the required elements for notification but doesn’t go out of its way to help either those submitting notices or those seeking put-back. There is no counter-notice information and the policy itself is buried as link in their terms and conditions. The site has registered with the USCO and, by all appearances, has done everything required to comply with the letter of the law. All in all, Snapfish’s policy is unimpressive in every regard.

Format: Email
Email Address: abuse at bbridgetech dot com
Location of Policy: Last Item, Terms of Service
Registered with USCO: No
Comments: The cool photo sharing site with a funny name has a less than cool DMCA policy with a less than serious approach to the matter. Though their DMCA policy provides the email address to contact their abuse department and the basics for submitting a complaint. It does not offer much else. Zooomr has not registered with the USCO as of this writing and provides no other means of contact such as snail mail, fax or phone. However, these limitations are representative of their entire terms of service, limited, unprofessional and done with haste. It seems that their entire abuse system lags well behind most other Web sites in this field.

Conclusions

All in all, of these sites, only ImageShack was truly lacking in its policy. All of the other sites have policies in place and provide the necessary information to file a notice. Though three, ImageShack, Zooomr and SmugMug had not registered with the USCO as of this writing, the other four had.

It appears that, while many of these sites have flaws and concerns, that most of them are interested in at least following the law as it is written and working with copyright holders.

However, this is not a complete list of photo sharing sites by any stretch. I can think of at least a dozen others that are not on this list. I will likely return in a few weeks to create a part two of this series, where I will cover seven more photo sharing sites.

Also, in a bid to make this a regular “Thursday” event, I will also be posting on the DMCA/Copyright policies of top social networking sites as well as video sharing sites.

If you have any suggestions for this series or know of any sites that you want covered, please leave a comment below. I would love your input on this.