First, I've been very disappointed to learn recently that the Imagekind Affiliate Programme apparently allows all associates to provide marketing banners containing images from any member of Imagekind anywhere they choose. I've been told that the Imagekind member agreement allows them to do this.
The Imagekind agreement
When I opened an account with Imagekind in July 2007 it was always emphasised to members (in the Imagekind forum) that members had to market their own work and that Imagekind did not do the marketing for them. That's emphatically NOT what an organisation would say which had an Affiliate programme.
This is what the current Imagekind agreements says - with my 'summary message' comments in red italics
Nowhere does it say Imagekind has an Affiliate programme. Nowhere does it explain what rights are granted to Affiliates. Nowhere does it state how Imagekind maintains quality control over the images placed by Affiliates on other sites.
11. Proprietary Rights
You acknowledge and agree that any Content, including but not limited to text, data, photos, graphics, etc. or other material contained or distributed on or through the Site, by Imagekind, its advertisers or other third parties, is protected by trademarks, service marks, patents, copyrights, or other proprietary rights and laws. (You will recognise and respect Imagekind's copyright and trademark rights) You may not use or distribute any Content received through the site without the authorization of the Content owner, except for uses permitted by law. (You can't use anything owned by the Proprietor without the consent of the copyright holder) You agree not to publish, reproduce, copy, in whole or in part, nor upload, download, post, email, sell, or otherwise distribute Content available through the Site including code and software, in violation of applicable copyright and other intellectual property laws.(You agree not to breach law in relation to copyright and intellectual property)
You will retain ownership of the Content you upload to Imagekind. (You own your content) You hereby grant to Imagekind a royalty free, worldwide, transferable, nonexclusive, right and license to use such Content as Imagekind deems necessary to enable you to use the Imagekind service to create, produce, crop, publically display, sell, distribute and purchase Products for so long as your Content remains uploaded to the site. (You agree to give Imagekind a licence to do whatever is necessary to fulfil its service to you) Imagekind may sublicense the rights that you grant it in this section to a third party subcontractor for the purposes of producing your Products and providing the Imagekind service. (You agree that Imagekind can let other people act on its behalf - under a sublicence - to do whatever is necessary) Upon cancellation of your account and removal of your images, Imagekind shall no longer maintain these rights. Our right to reproduce your images for sale to the public is completely contingent on your participation on our website. When you delete your account, which you may do for any reason and without penalty, we no longer have said rights to reproduce and sell artwork on your behalf.(Imagekind won't display your images anywhere else unless you are a member of Imagekind)
13. Copyright and Intellectual Property PolicyImagekind respects the intellectual property rights of others and we require our users to do the same. We may terminate the accounts of users who appear to infringe the copyright or other intellectual property rights of others. (Just in case you missed it the first time - you are bound by copyright law and may not infringe it)
Extracts from the Imagekind terms of service
Maybe I was naive but given, there was no Affiliate programme on the site when I started, there were multiple protestations about how Imagekind doesn't market your work for you and there has been no notification to me since I'd assumed this wasn't an issue.
It now seems I was wrong! Imagekind apparently now has an Affiliate programme and this programme can use my images - or your images - and place them wherever they see fit.
Affiliate programmes - and my perspective on the Imagekind Affiliate arrangements
Affiliate programmes are a very common way in which organisations can publicise the products and services they are merchandising. When designed and used intelligently they can make money for both the producer, the Affiliate and the host company and at the same time avoid any compromise to the integrity of the product.
In principle, I've no problem with Affiliate programmes per se where the product in question is a service or a tangible product and the product/service is sold through words and images which represent what the customer will get. However when the product is an image, then that means that the image is being used to sell itself. Which is less acceptable - if not objectionable if there is no control over how and where that image appears.
Here's my take on this.
Artists tend to fall into two camps. Those that care about and keep a careful control over where their images appear on the Internet - and those that are happy for anybody to use their images anywhere they like if it generates income for them. I exaggerate but that's more or less summarises the two different perspectives
- The artists who care about where their images appear tend to use copyright notices and/or only use websites which support the artist's legal rights in copyright law.
- The artists who are less worried may well post their images around and about and not use copyright notices and generally be much more laid back about how their image is used
I used to lean towards being more laid back - until I started this blog, it got popular and every thieving spam blog in creation started stealing my content wholesale (both text and images) and decorating it with Google Ads. There was of course no accreditation and no copyright message. The spam thieves got short shrift (I had a word with Google) and I shifted over to a short feed - which largely doesn't carry any images and largely caused the problem to go away. I'm now a Type A control freak about where my content and images appear.
Thus, given the two schools of thought, in my view any website service wanting to make money through artists' images needs to make their member agreement absolutely 100% transparent. As in - spell it out!
- Any consent to the licensing of copyright should be well-informed - in my opinion, I don't believe that the current terms of the Imagekind service leave members as well informed as they obviously need to be (how many of you were aware of the scope for Associates to use your images anywhere they choose?)
- If an organisation is allowing 3rd parties to use my images then I want to be told - in detail - about what controls that organisation places on usage and how it vets its associates. I'm concerned to note that people are saying the thumbnails are not thumbnails. I can't see for myself because my browser or security system won't allow me access to the Associates site! (Worrying!)
- In relation to an Affiliates Programme (and anything similar), make sure the member terms of service and the FAQs both make explicit and detailed reference to it. Make sure the Member Forum has somewhere where people can raise queries about the Affiliates Programme.
- Make sure your member agreement doesn't have mixed messages. Upholding copyright explicitly on the one hand - and licensing others to use your images anywhere they choose without telling you on the other.
- Make sure that all Affiliates' 'widgets' have very clear messages about the copyright of the images - and don't leave anything to 'trust' or 'common sense'.
If people don't want their images in an Affiliate banner on other people's websites then they should have the option to opt out. Contrary to the assumptions made by some, not everybody wants their art advertised away from the Imagekind site. There are very many other images which can be used.
I've asked about an opt-out arrangement but have not received any reassuarnce that it will happen. Maybe Imagekind is worried that too many artists would want to opt out or maybe they're just not aware of the Cafe Press approach to fostering a constructive relationship between members and affiliates?
The Cafe Press Approach: I found the difference between the different approaches to Affiliate information provided by the Cafe Press (owner of Imagekind since July 2008) and the Imagekind site to be very interesting. (see for example the Cafe Press FAQs page and separate Affiliate Help Forum). Especially notable is the following best practice recommended by Cafe Press............
Before directing traffic to a CafePress shop, be sure the shop is opted in to receive affiliate sales. You can verify this by ensuring the products sold in the shop are also available in the CafePress marketplace.I've never come across an artist who said they made a lot of money because their images got noticed because they were spread across the internet willynilly by other people. I'm not saying they don't exist - just that I've never read about one.
CafePress Affiliate Program Linking Best Practices
By way of contrast, I read all the time about people finding that their images have been abused in terms of finding them on sites or products and generating money for other people. Frankly after all the hassle I had with the theft of this blog's content I simply don't want any more - and nor would you if you knew what a time waster it can be!
One further matter. Note that Imagekind will not ask you whether you wish to renew your subscription if you take out a Platinum/professional account. They will just take the money from your account with no warning or confirmation emails. So far I'm in deficit in terms of the overall agreement............and I think I'm likely to cancel my account before next July. Which basically pigeonholes Imagekind in the category of website which makes money through membership subscriptions rather than through selling art.
Whether (and how fast) that cancellation happens is likely to depend on how fast is the Imagekind response on the Affiliate issue - and the scope for an opt-out.
A final thought. We are in a recession. Retails sales are currently falling off a cliff. Major manufacturers and retailers are making large numbers of people redundant. The January sales have just started six weeks early in the UK. Online sales have already been hit.
In these circumstances, any trading organisation which appears to fail to respect the feelings and wishes of its clients may well find it difficult to gain or hang on to their custom.
Previous posts on Making A Mark
- CafePress acquires Imagekind - what next? ( 9th July 2008)
- Changes at Imagekind: the pros and the cons (14th February 2008)
- Imagekind: an update and a new Catnapping gallery (20th July 2007)
- "Making A Mark" sets up a gallery at Imagekind! (19th July 2007)