New Year's resolution: Don't use Instagram, it'll sell YOUR photos Social network Instagram has provoked uproar among its latte-photographing users: it has changed its terms and conditions to grant itself licensing rights to sell all photographs taken by the app. The amendment in the Ts&Cs will come into effect from 16 January. The firm will not technically "own" the images but will be able …
The case that's specifically interesting is what happens if I take a picture of someone, which Instagram then use to sell advertising? That's commercial use and I think at least very questionable. Of course it is probably you, not Instagram who are liable for this.
It raises an interesting point - is it going to be illegal to upload people's pictures to Instagram without permission? Before, you could make a case that they were personal. By extending this into the commercial sphere, you would seem to be doing something that is at least a tort.
I hope the lawyers get onto this quick, because I really don't like being photographed by strangers with the risk of ending up identified on farcebook without my even knowing I am there, and if this puts a stop to it so much the better.
I couldn't agree more. My sister uploaded pics and a video of my baby pushing her new toy pram around the kitchen and I made her remove them. Now I'm not even on farcebook for this very reason - but how to police such things...???
You need an account to know about it, I only found out as the wife is on farcebook, but I don't let her upload pics of the kids, and the kids themselves are banned from the site.
Facebook/instagram, you're a shower of bastards.
"The case that's specifically interesting is what happens if I take a picture of someone, which Instagram then use to sell advertising?"
I assume the line "Instagram does not claim ownership of ... " is some kind of legalese that leaves you responsible for the image but they get to profit off it.
I assume the line "Instagram does not claim ownership of ... " is some kind of legalese that leaves you responsible for the image but they get to profit off it.
Not quite, though they have covered their backside elsewhere
The terms leave them able to say Bakunin licensed us to use it for commercial purposes, and we did so in good faith, if there was no permission to use the likeness of the model, Bakunin should not have granted us the license
The not claiming ownership is basically clarifying that the rights to the work do not transfer. Largely because if they did, people would get very, very upset. The only real difference though, is that the former doesn't stop you re-using (and/or relicensing) the work elsewhere - for Instagram the only difference is they can't assume exclusivity
"The terms leave them able to say "Bakunin licensed us to use it for commercial purposes, and we did so in good faith, if there was no permission to use the likeness of the model, Bakunin should not have granted us the license" "
Is there an explicit indication that the agreement includes a model release, or is this just implied (or perceived to be implied by you).
Even if that was accepted that it did, and it was valid, there's a problem.
It's obvious that, as a service aimed at the general public, a significant proportion of people either (a) won't have read the agreement and be aware of what's in it, (b) might have read it, but won't have understood it and/or won't have understood the *implications* of what they were agreeing to and/or (c) won't care about the copyright status of any uploaded random crap anyway.
This is obvious to me, so it wouldn't be remotely plausible for Instagram (or Facebook)- billion dollar companies with presumably massive legal resources- to argue in court that it hadn't occurred to them.
Regardless of whether one could argue that the end users agreed to the terms and *should* have known what they were doing, it wouldn't change the fact that Instagram/Facebook were (I'm guessing) on the hook for any copyright violations or incorrect model releases when they would have known damn well in advance that it would happen.
IANAL, but I doubt Instagram/Facebook could simply wash their hands of responsibility if they weren't (at least) pre-screening and verifying material, regardless of that clause. (Anyone with an appropriate legal background care to confirm if this is correct or not?)
@Michael
Is there an explicit indication that the agreement includes a model release, or is this just implied (or perceived to be implied by you).
By agreeing to give them the rights, you are saying that you have the rights to do so, so a model release is being implied (bearing in mind that a model release doesn't have to be a bit of paper - the paper just provides you with proof of what's important: that they consented to their likeness being used).
It's obvious that, as a service aimed at the general public, a significant proportion of people either (a) won't have read the agreement and be aware of what's in it, (b) might have read it, but won't have understood it and/or won't have understood the *implications* of what they were agreeing to and/or (c) won't care about the copyright status of any uploaded random crap anyway.
You could say the same about EULA's, the terms and conditions of your bank account or any other legalese document. As the user, you've confirmed that you've read and agreed, so the terms are binding (not actually that simple, but for a different outcome you'll likely need a day in court).
FB/Instagram wouldn't automatically be off the hook for copyright violations (especially if they couldn't produce a real person to point the finger at - i.e. the uploading user had used fake details), but they could potentially then take action against the user (dependant on finding him/her) for breach of contract. They'd certainly try to use it to reduce any damages awarded against them (we used the image in good faith your honor)
It's a risk that a lot of web-based companies take, to some extent. Look at Helium - if I upload someone elses work as my own and they then license it to a magazine you enter a similar sort of situation.
IANAL but I have studied law.
"The case that's specifically interesting is what happens if I take a picture of someone, which Instagram then use to sell advertising?"
My first thought was of this infamous case from a few years back:-
http://www.theregister.co.uk/2007/09/24/creative_commons_deception/
Having re-read that article, it's not clear that the issue wasn't also one of copyright (the uploader to Flickr and the one who "granted" permission for reuse wasn't the photographer/owner). But the issue in question is that even if copyright permission *had* been legitimately granted by the owner, the ad agency probably still would have been able to be sued by the girl in the picture because they didn't have a model release.
"I assume the line "Instagram does not claim ownership of ... " is some kind of legalese that leaves you responsible for the image but they get to profit off it."
Trust me, I'm sure a competent lawyer will find some way to argue that, regardless of any attempt to weasel their way out of responsibility through pseudo-legalistic disclaimers, they're still on the hook. A particular motivator being the fact that Instagram/Facebook are the ones with all the money, not the random sod that uploaded it.
(Particularly as the affected person wasn't the one who agreed to such questionable terms and conditions?)
Are you?
A contract under English law exists where there is a "meeting of minds". If I sell my holiday pictures to a picture agency (unlikely but bear with me) I am likely to get a document to sign saying what my rights and their rights are. But if it is the first time, the person sticking the document under my nose is going to say "Do you have a right to sell these pictures? Have you got model release forms for these naked ladies disporting under a waterfall? That villa in the background - did you have permission to take pictures on site?"
Instagram doesn't appear to be doing that. They are trying a CMA, but they are not doing any diligence to make sure their users are obeying the law. And they are doing the selling.
It isn't a defence against a charge of fencing stolen property to tell the police that you got the drug addict to sign a declaration that you didn't own the goods, you were just making money off flogging them. Who gets the higher sentence if caught - the petty thief or the professional fence?
Set up a few fake accounts, upload copyrighted photos from as many famous photographers, swamp Instagram with thousands of these pictures.... Sit back and wait.....
Watch the shit hit the fan when Instagram gets bent over, claiming it wasn't their fault for using copyright photos...
"Set up a few fake accounts, upload copyrighted photos from as many famous photographers, swamp Instagram with thousands of these pictures.... Sit back and wait....."
Sorry, that dog won't hunt. Instagram will claim safe harbor under the DMCA, as long as they take appropriate action on being notified of IP issues with the images involved.
How they're going to dodge the model release is more interesting and, frankly, quite frightening.
Isn't it about time to start the conversation about secondary privacy? You know, everything someone else knows about you is not necessarily available to the highest bidder. It's not just photos; how many people have handed out your email address(es) in the guise of "contact management?"
That was what I was thinking when I first heard this. Some user uploads an image over which they don't have the rights; Instagram use it in an advertisement campaign; the rightsholder sues Instagram; Instagram in turn find out the user signed up with bogus credentials in the first place, and have no comeback against them.
If / when Instagram go back on this decision, you can bet this -- and not user power -- was the real reason.
Perhaps this will stem the tide of those nauseating hipster-wannabe crap quality photos which are supposedly suddenly of merit because they've been filtered.
The sooner they disappear, the better!
(As for those whinging, did you seriously expect Instagram to host all your shit for free forever? Seriously? Get real...)
I've been watching people bin their accounts on Twitter all day, the pro/semi-pro photographer community is abandoning ship en-masse.
All it takes is a tweet from Beiber or some other celeb livid about the possibility of Facebook harvesting their image for adverts and the shit will truly hit the fan.
Delightful! Like people didnt see this coming from the off..!?
Just as Flickr have started pulling the stick out of their proverbial too. That said, Flickr could do without a megadump of hipster chintz (seems from what Ive seen to be the alt repository of choice), there are enough eyebleeding HDR images already as it is.
Flickr had all this in the palm of its hand for years, heres hoping for a resurgence.
Yes, but in this case I don't mind. If the Reg can sell information on what I look at and post on IT related subjects to the IT vendors, it might microscopically improve the service I get from them. I want feedback from our customers, I don't see why they wouldn't want feedback from me.
With the "social media" sites, I don't have a clue who their customers are. Perhaps they're flogging my search for kosher restaurants in South London to the BNP. I have no way of knowing.
PROTIP
The popular page on instagram is full of twats and shit - indeed as some people have stated.
But if you look for your friends and leaders of the industry you are in, then you should get better photos. I treat my account like a photo diary cos I genuinly belive some stuff is share worthy, however I have never photographed food or coffee. Also I use and account for a small clothing label and drop the logo discretly in every photo. If they reuse them photos then theres some free advertising.
It would ruin photos but a tiny tiny discreet logo or watermark would ruin the stock photo idea!
Not simple, unfortunately.
Any pictures you don't delete from the service by the 16th Jan are also to be deemed to fall under these conditions. Which sounds fine, but if the pictures have comments from other users or have been re-shared they *can't* be deleted.
Personally, as an amateur photographer I'd be quite happy to let them use my pictures if they shared the royalties with me, but I'm not giving them my work for free. I've heard that's what's wrong with downloading movies from bittorrent, we can't really have it both ways, can we?
Luckily, I only joined the service very recently so I have (or rather had) about six pictures that I have now deleted. If I upload anything in future I will make sure it has a proper copyright notice and something stating it's not for commercial use (or similar) without proper written consent.
At the very least it would create a grey area that possible licensees will probably stay away from or might at least get me involved in any commercial discussions.
Mind you, once the media companies that use this service to make their clients "hip" get word of this I expect more than a little fur to fly.
Usually the question is, "Did the other commentard read the article?" But in this case I'm wondering about the editor.
"Sell"? They are pretty clear that they don't own and can't sell your photos.
What they can do is sell the use of the photos.
Still, it is a pretty dreadful wording.
I wonder, did they intend something like Facebooks' "Instant Personalization" but the lawyers used over-general wording?
Kind of bizarre, though hardly surprising, how may posters here jump in to denigrate Instagram and its contributors. Yes the Popular page is rubbish ("nail polish, shoes, and One Direction") but it is extremely easy to find mind-blowingly gorgeous images through the search feature — navigation within the app is brilliant. By now I'm guessing the majority of the world's professional photographers have accounts and are uploading their works in order to hawk either prints or full resolution images. These pros are not taking pics through Instagram's crappy filters but are using their own cameras and commercial software. What I wonder is whether they will want to stay on after this latest change in policy. Kind of a difficult calculus as to whether having the odd pic swiped for an ad will devalue a work or burnish the artist's reputation.
Reminds me of the time when you joined an online service that asked for your email address and they said it was safe as they "did not share or onsell your personal email details". Yes really, and they all used to sell email addresses by the database load to interested parties. Bunch of fuckin etard liers.
I used to use a personal web site for sharing a few snaps but then started using facebook. All I am going to do now is resurrect this site and only post very low quality thumbnails to Facebook with a watermark over them (maybe linking to the personal site url). I am not surprised they are trying to find a revenue source and understand the need to do this somehow (you can’t expect to get something for nothing) but I don’t want to allow personal pictures to or my profile to be used.
PS: I have always used some dis-information when signing up for any online service.
Best Regards
Ewar Woowar aged 106 and 3/4.
Yup, I realize that FB paid out $1B for Instagram, but
Upside?
What is the really big upside in selling amateur photos to advertisers? Are the photos gonna be that great? What's in it for the advertisers that they are going to jump on this awesome opportunity and shell out a lot of moolah? Do big, high-profile, advertisers even want to touch this issue with a ten foot pole?
Downside:
Didn't FB already have a splat about "sponsored stories"? I don't see why they would want to run extra risks regarding user privacy issues. FB may or may not be appreciated by all and sundry and they were overvalued on their IPO. But they are the ONLY social network around and will remain so until an upstart has a way more attractive offering (network effect). Leaves them plenty of time and $ to figure ways to be profitable. JUST BY NOT SCREWING UP.
An incoming upstart may be attractive on the basis of superior service. Or just by being "less evil". I really don't see why FB wants to expose itself to that second risk by earning itself a lot of negative press.
At the end of day, I figure FB just doesn't "get" privacy. It is a calculated gamble and not necessarily a bad one, from the profit-maximization point of view of FB. But in this particular case, are how the likely benefits worth the probable risks?
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