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.