The Story of the Instagram Rights-Grab Mess
An audacious and flagrant intellectual property rights-grab was threatened when Facebook’s Instagram service quietly changed its Terms of Service (TOS) in 2012. The resulting uproar, backlash and boycott by some of Instagram’s 7.3 million daily users was, appropriately, instant. Instagram quickly reverted to an older TOS, but not before many users defected to rival sites and a class action lawsuit was filed. Here’s the story told by headlines and quotations.
Wired called it a “boneheaded” “PR disaster.” Mashable called it “ .” National Geographic was “very concerned” and major photographer organizations submitted a “protest.” CNET even said the change would “effectively transform [Instagram] into the world’s largest stock photo agency.” What caused such an uproar? Let’s find out.
On December 17, 2012, Jenna Wortham and Nick Bilton in The New York Times first reported that Instagram had changed its Terms of Service. Nothing unusual there. But, in dense and unambiguous legalese, the Facebook-subsidiary quietly helped itself to all the rights in all the photos you upload to Instagram after January 16, 2013. And, as a topping, if their use of your photos causes any legal problems, YOU have to reimburse them. Nice.
As could have been predicted by anyone who isn’t an Instagram lawyer or executive, the Internet went ballistic. Here are some choice headlines and quotes.
“Instagram Wants to Sell Your Photos . . . Without Paying You . . . and Hold You Liable for Model Releases and Infringing Others’ Rights.”
“Instagram’s New Terms of Service Make Lame Filters The Least Of User Worries”
“New terms of service could spell end of Instagram.”
— Fox News
“Is this Instagram’s Netflix moment?”
“The Day Instagram Almost Lost Its Innocence”
“… a dramatic policy shift that quickly sparked a public outcry.”
“The thought that all those bad photos of mediocre meals might appear in a Denny’s ad provoked anxiety from phone photographers.”
— Roberto Baldwin, Wired
What the fuss was about
Instagram changed several key parts of its Terms of Service — items 1, 2 and 4 of “Rights” which, when read together, seemed to permit an intellectual property rights grab.
1. You … hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service …
2. … you agree that a business or other entity may pay us to display your … photos … without any compensation to you.
4. You represent and warrant that: … (ii) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service;
Can Instagram sell your photos?
“Starting in January, Instagram will effectively be able to sell your images.”
“Instagram can sell your photos to third parties for ads without telling you.”
“Instagram Can Now Sell Your Images Without Your Knowledge”
“The terms provide Instagram with a perpetual right to sell users’ content without payment or notification, and requires the content owner to represent and warrant to Instagram that Instagram’s use will not violate any third party rights, including publicity and privacy rights.”
— ASMP, PPA, NPPA, PACA, APA, GAG
“Under the new terms of service, users of Instagram, which was purchased three months ago by Facebook, consent to have their images used in ads and sponsored content — but Instagram keeps the payment.”
“That means that a hotel in Hawaii, for instance, could write a check to Facebook to license photos taken at its resort and use them on its Web site, in TV ads, in glossy brochures, and so on — without paying any money to the Instagram user who took the photo. The language would include not only photos of picturesque sunsets on Waikiki, but also images of young children frolicking on the beach, a result that parents might not expect, and which could trigger state privacy laws.”
“Many shooters — even the casual ones — probably aren’t that excited to have a giant corporation out there selling their photos without being paid or even notified about it.”
“No other major photo-sharing service appears to have language as broad as Instagram’s, which claims the perpetual right to license users’ photos to companies or any other organization, including for advertising purposes …”
Are you liable to Instagram?
“Essentially, if you connect the contractual dots between Item 2 and Item 4, Instagram forces you to bear the burden of any infringing use that Instagram makes of your images.”
— Photography Bay
“It’s asking people to agree to unspecified future commercial use of their photos. That makes it challenging for someone to give informed consent to that deal.”
— Kurt Opsahl, senior staff attorney at the Electronic Frontier Foundation
Instagram quickly caved and reverted to an old Terms of Service.
“Under a continuing barrage of negative feedback, account cancellations, and defections by its users to other photo sharing services, Instagram has withdrawn the most controversial changes to its terms of service agreement.”
The concerns we heard about from you the most focused on advertising, and what our changes might mean for you and your photos. There was confusion and real concern about what our possible advertising products could look like and how they would work.
Because of the feedback we have heard from you, we are reverting this advertising section to the original version that has been in effect since we launched the service in October 2010.
You can see the updated terms here.
Going forward, rather than obtain permission from you to introduce possible advertising products we have not yet developed, we are going to take the time to complete our plans, and then come back to our users and explain how we would like for our advertising business to work.
“It was interpreted by many that we were going to sell your photos to others without any compensation. This is not true and it is our mistake that this language is confusing.”
— Kevin Systrom, Instagram CEO
“The language we proposed also raised question about whether your photos can be part of an advertisement. We do not have plans for anything like this and because of that we’re going to remove the language that raised the question.”
— Kevin Systrom, Instagram CEO
The inevitable lawsuit was filed within four days.
— West Reference Attorney Blog
Alternatives to Instagram
So for Instagrammers who want to defect, what are the alternatives?
- Camera Awesome
Convertors for Instagram
- Instaport — A simple way to export all your Instagram photos to other social services or your local hard drive
What does this all mean?
“You are not our customers, you are the cattle we drive to market and auction off to the highest bidder. Enjoy your feed and keep producing the milk.”