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Should We All abondon Instagram or What?
After the recent kerfuffle over the much loved Instagram’s new Terms and Conditions, it did indeed look as if the social media giant has the power to sell any images uploaded to it. Worried about where we are going to post the pictures of our cats/cakes/shoes, we asked Scott Gair ~ our go to chap on all things photography and the law to look into it for us.
On 18th December Instagram published a set of T&Cs which were hammered across online communities. If Twitter traffic is to be believed, many people closed their accounts as the revised terms appeared to give the Facebook-owned site the perpetual rights to all images uploaded. Users were particularly worried that Instagram could use their photos for commercial purposes without contacting them or giving a credit.
Since the public backlash Instagram has taken steps to address those initial concerns by re-drafting the T&Cs. T&Cs are normally drafted by lawyers to protect their clients, and are rarely drafted to be easily understood by the general public and are very often littered with legal jargon. Yet the new Instagram T&Cs seem to have worked in reassuring people, as the site is continuing to attract new users. New data suggests Instagram.com received more than 41.7 million total US visits, an increase of 18 percent compared with the 15 days prior to the controversial proposed policy changes.
I checked out the new Instagram T&Cs on 3rd January (due to come in to effect on 19th January 2013). Instagram has tried to draft the terms in plain English and it’s true they are easier to understand, but pages and pages of T&Cs are never going to be terribly exciting or simple to read.
Instagram now confirms that “Instagram does not claim ownership of any Content…instead [they are granted] a non-exclusive, fully paid up and royalty free, transferable, sub-licensable, worldwide licence to use the Content…” In short, if you upload your photos Instagram can use them as they wish for free. This includes any purpose outside of Instagram. These new T&Cs are not dissimilar to those on Facebook, which is unsurprising given that Facebook now owns Instagram. Both sites maintain that the terms are drafted so broadly to enable them to keep up with the technological advances and allow them to experiment with innovative advertising, and they do not intend to sell our images, but there is no legal guarantee they will always stick to this promise.
Any photographer who is taking pictures which are commercially valuable should consider a social media site’s particular T&Cs before uploading. If I took an exclusive photo of an A-List celebrity doing something they shouldn’t which I thought would sell, I certainly wouldn’t upload it to Instagram or Facebook without worrying that it would be used without permission or payment. Even if Instagram or Facebook didn’t use it, I’ve seen many examples of news media taking images from Facebook or Twitter and I suspect on occasion without consent. However, in the vast majority of occasions individual images are unlikely to be worth huge sums of money, and the adverse publicity these sites would attract by selling off the user’s images without consent would be immense.
Given other social media sites have long been using similar T&Cs it seems to me a neat example of a storm in a tea cup, but this shouldn’t stop photographers considering the value of images before sharing them. Weigh the risks up against the benefits of using such sites to market your business – which are now hard to ignore.
So are you deleting your account? We’d love to know your views….
Scott Gair is an Associate Solicitor at Mayo Wynne Baxter LLP, and acts for a number of professional photographers and picture agencies dealing with a wide range of legal issues. Scott writes a monthly column for Photo Professional magazine and as a photographer himself, is well placed to offer legal advice to meet photographer’s individual needs. He will be speaking all things to do with photographers and the law at farm Week on 25/01. Full details are here. These instagrams are all by Lisa Devlin.
I deleted my account. It was a time sink and unnecessary. The kerfuffle over the new T&C when they were released in December, before they tried to backstep, sent me to delete my account immediately. I realize Facebook has similar terms & I still upload photos there, but I’m starting to think that I’ll reserve most of my photos for my blog, or on Flickr, where creative content is more protected.
I’m leaving Instagram… I had a look around &, now that they’re putting some effort into things, the new improved Flickr (including the iPhone app) looks like it could be well placed to fill the gap.
Iinstagram’s a free site so if they want to make money off it then they have every right to do so. I’m not gonna get in their way. But, how they go about it is where I’m gonna take interest.
If they’d offered the free service with agreement they could use your photos alongside a paid subscription where they didn’t use your photos then there would not have been as much of a ruckus. There is no way anyone could make an argument that all they were trying to do was get access to a very lucrative pot of photos with no permission or payment to the owners (not so cool). Offering an alternative model would have demonstrated they were just trying to make money off their business (totally valid) while offering a free alternative. This would keep legitimate business people who use the service (like pro photographers) happy as well as keeping the “I don’t care as long as it’s free” people happy as well. WIN-WIN
Flickr offers a free service without the blatant use of your photos *but* they also offer a paid service with bonuses. I have been paying, & am happy to continue paying, for Flickr for around 5 years now. I would have been happy to pay a similar amount for Instagram but they never gave me that option. If they had given me the option then I would probably still be there, as would (I suspect) many other pro photographers.
Their action is merely part of the ever growing issue of photographic copyright ownership. Digital has opened photography up to the masses (a good thing), many of whom have absolutely no idea about what their rights & responsibilities are when it comes to copyright (a bad thing making things worse for pro’s). Many large companies (along with many not so large) are exploiting that lack of understanding for their own financial gain & to the detriment of professional photographers everywhere. Who hasn’t been promised loads of exposure in exchange for working for free – exposure doesn’t feed my kids. Or how about the “Photography Competitions” that seem to have sprung up now where every single photo submitted becomes the property of (or at least granted an unlimited license) the company organising the competition.
At the end of the debate a “free” service is still a service & I am still a client/customer. Just like with any other service, paid or free, my only course of protest is to write a strongly worded letter &/or leave for another service. I chose to exercise my rights as a customer, I wrote a letter & then went back to Flickr, who I consider is now, a better option (for me). They appear to have upped their game (& now offer a much better app which is what caused me to stray).
Other people get to make their own choices though & that’s why Instagram will remain popular for them. Good luck to them.