Controversy Over Instagram’s New Policy
The Internet has gone bonkers in the last few days over Instagram‘s new Terms of Service. The popular photo-sharing site – and Facebook’s billion dollar baby – has been met with a flood of criticism. Instagram Tweeted in response:
We’ve heard you that the updates to our Privacy Policy & Terms of Service are raising a lot of questions. We’ll have more to share very soon
In the meantime, let’s look at what the changes are and what this all means for Instagram’s users.
Instagram’s service is very simple: users post photos that can be seen by other users. Imagine Facebook, except only for photos. The free service became popular initially because of its variety of filters, which allow high-resolution digital photos to look like faded Polaroid prints from the 70s or moody black-and-white noir artifacts, among other effects. The service was purchased by Facebook earlier this year for $1 billion, and Facebook CEO Mark Zuckerberg recently claimed that Instagram has 100 million users. So any changes in their TOS have the ability to affect a lot of people.
The controversy of the moment concerns Instagram’s ability to use your photos in advertisements. The updated TOS – which goes into effect on January 16, 2013 – includes the following clause:
Some or all of the Service may be supported by advertising revenue. 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. If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata)) on your behalf.
Instagram claimed on their blog yesterday that “Nothing has changed about your photos’ ownership or who can see them.” I would categorize that statement as technically true, but not really telling the whole story.
Who Owns my Photos?
It’s a basic principle of copyright law that if you take a photograph (assuming it’s not a work for hire, which doesn’t apply in most cases here), you are the owner of the copyright in that photo. It doesn’t matter if you took it with Ansel Adam’s own Zeiss Milliflex (confession: I looked that up) or with your iPhone, or anything in between. You took it, you own it, it’s yours.
When you choose to post such a photo on a site like Instagram, basic logic states that you are granting them some sort of license to digitally reproduce – or, make copies of – the image. A copyright license grants someone the right to use the copyrighted material, but it does not transfer ownership of the copyright itself. This whole matter boils down, in a sense, to the scope of that license. What can Instagram do with those images? Who has control over how they are used?
So What Rights Does Instagram Have?
Instagram’s updated TOS is careful to state that “Instagram does not claim ownership of any Content that you post on or through the Service.” They are not claiming that you have assigned them your copyright in the image that you posted. So their statement – “Nothing has changed about your photos’ ownership” – remains correct in a narrow legal sense. The photographer is still the owner.
The “or who can see them” business is likewise accurate in a literal sense. While most Instagram users allow their images to be seen by any other user, there is a private mode. According to Instagram’s FAQ, “If you choose to make your account private, then only people who follow you on Instagram will be able to see your photos.” So, there are two ways to use the service: publicly, in which anyone can see your photos, and privately, in which only those who you allow to follow you can see them. That hasn’t changed.
What has changed, apparently, is how Instagram itself plans to use your (public) photos. It appears that they plan to allow them to be seen by others as part of advertisements. For example, if you post a photo of yourself drinking coffee – and write in the caption, “Here I am drinking coffee” – Instagram could show your friends that picture as part of a coffee advertisement. Congratulations, you are now the star of your very own ad, without your knowledge or direct consent or any form of payment.
“Doesn’t Facebook itself do the same thing?,” you ask. Facebook stated on its blog back in 2009 that they did not use members’ photos in advertisements. They do not seem to have updated that policy since then. Was this Instagram TOS change a stalking horse used by Facebook to test users’ sensitivity to these types of changes? We may never know…
An interesting legal question arising out of all of this is whether a service like Instagram can use photos of you in advertisements – as opposed to, say, photos taken and posted by you of an inanimate object. The New York Times’ Bits Blog (how cute) quotes Marc Rotenberg, executive director of the Electronic Privacy Information Center:
“Most states have laws that limit the use of a person’s ‘name or likeness’ for commercial purposes without consent,” Mr. Rotenberg said. “The legal purpose is to allow people to obtain the commercial value of their images and endorsements, which is a big issue for celebrities and others, but also a reasonable concern for Facebook users whose images are used by Facebook to encourage friends to buy products and services.”
How Will This All Play Out?
Ultimately, the question of whether Instagram can define the copyright license granted by its users to include use in advertisements – and what the limits of that license should be – would have to be settled in court. I doubt that will happen anytime soon, however, as my sense is that Instagram/Facebook will back off and clarify these policy changes in short order, given the outcry they have received. If you are genuinely concerned about Instagram using one of your photos in an advertisement, you’re free not to use the service. As for me, I’m taking a wait-and-see approach. If, after January 16, I see (or hear about from my friends) a flood of ads using my photos, I will use my judgment as to whether that’s OK with me. I like Instagram, and I’m not sure I would really mind my photos being used in ads from time to time, but that may change. In any case, it’s a decision each user should make for him or herself, armed with all the relevant information. Let’s hope that however Instagram’s policy evolves, they will be clear with their users about how their photos can be used.
UPDATE
Boy, the Internet sure does move fast. While I was writing this post, Instagram posted an update on its blog. The relevant portion is as follows:
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.
Nonetheless, it’s still not entirely clear how Instagram intends to leverage its users photos and data for advertising purposes. Most likely, Instagram’s executives themselves aren’t entirely sure. The legal questions remain relevant. There are two important take-aways here:
1. Inform yourself about web companies’ policies as best you can; and
2. Speak out when you see something you don’t like – these companies tend to be sensitive to bad publicity, and they are liable to make changes if they see a lot of opposition.
