Instagram Wants to Sell Your Photos . . . Without Paying You . . . and Hold You Liable for Model Releases and Infringing Others’ Rights

Instagram just went off the deep end with its latest terms of service update, which allows the company to sell your images without paying your at all for their use.

The relevant provision regarding the sale of your images is found under Item 2 of “Rights” in the Terms of Service as follows:

To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you.

This provision on its own doesn’t bother me so much as a casual user. It grates me a bit, but I’m not really sweating Instagram’s use of my images reposted as advertisements or promoted content on the service. However, I recognize that a lot of photographers out there use Instagram as a more serious marketing endeavor or have licensing issues with their images that they can’t allow such use without otherwise jeopardizing their business.

The major hiccup for me comes under Item 4 of “Rights” as excerpted below:

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;

And that’s why I’m going to be deleting my Instagram account if they don’t clean this mess up quickly.

Essentially, if you connect the contractual dots between Item 2 and Item 4, Instagram forces to bear the burden of any infringing use that Instagram makes of your images.

Don’t have a model release for commercial use? Better not upload it to Instagram.

Let’s say you take a street photo of some random person in a public place (which you totally have the right to do) and you post it to Instagram (which you totally have the right to do), and Instagram posts that image as part of an ad campaign for some company. That image just turned into commercial use and the person in the image likely has the right to be compensated for the commercial use of his or her likeness.

Now, this random person, who didn’t sign a model release has a “cause of action” against Instagram and the company who paid to use him/her in the ad campaign.

What if Instagram gets slapped with a $1M judgment?

Under Item 4 of “Rights” within Instagram’s terms of service, “YOU agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service.” Accordingly, Instragram’s new terms of service allows the company to come looking to you the $1M judgment they paid out because your content infringed on the privacy rights of of a third party (again, referencing Item 4).

I can think of a dozen or so evil scenarios such as this one off the top of my head…

What were they thinking?

I find it mind boggling that an attorney could write this language and not anticipate this scenario, which leads me to believe this is a deliberate attempt on Instagram’s (Facebook’s) part to completely take advantage of the goodwill of its users. So, yeah, this is evil.

The insiduous nature of these new terms of service is further exacerbated by the quaint little blog post that highlights “a few key updates” as follows:

  • Nothing has changed about your photos’ ownership or who can see them.
  • Our updated privacy policy helps Instagram function more easily as part of Facebook by being able to share info between the two groups. This means we can do things like fight spam more effectively, detect system and reliability problems more quickly, and build better features for everyone by understanding how Instagram is used.
  • Our updated terms of service help protect you, and prevent spam and abuse as we grow.

There is no way to anticipate from these “key updates” that Instagram is making such an ambitious grab at your photos and stepping on your throat with regard to the representations you are making with regard to the rights of others in your images.

Photographers are bailing out faster than you can say #Instagram

I’ve watched my twitter feed and RSS news reader light up from photographers all day long with statements they are leaving or already have left Instagram. And, Instagram has heard the voices, apparently…

As I write this post, Instagram just published another blog entry as a response to the backlash.

As we review your feedback and stories in the press, we’re going to modify specific parts of the terms to make it more clear what will happen with your photos.

Legal documents are easy to misinterpret. So I’d like to address specific concerns we’ve heard from everyone:

. . . .

To provide context, we envision a future where both users and brands alike may promote their photos & accounts to increase engagement and to build a more meaningful following. Let’s say a business wanted to promote their account to gain more followers and Instagram was able to feature them in some way. In order to help make a more relevant and useful promotion, it would be helpful to see which of the people you follow also follow this business. In this way, some of the data you produce — like the actions you take (eg, following the account) and your profile photo — might show up if you are following this business.

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. Our main goal is to avoid things likes advertising banners you see in other apps that would hurt the Instagram user experience. Instead, we want to create meaningful ways to help you discover new and interesting accounts and content while building a self-sustaining business at the same time.

Ok. Fair enough. Let’s see that removed and a lot of these problems go away. I’d still love to know why this language was included in the first place because it is far too specific to simply be an accident.

At the time of publication, the offending portions in the Instagram terms of service remained.