Instagram wants to sell your photos – for free

by DaniGirl on December 18, 2012 · 12 comments

in How I love the Interwebs, Photography

Yesterday, Instagram announced a change in its terms of service (TOS). It says that from now on, it has the right to sell your photos to third parties for purposes of advertising. That’s right, your Instagram photo can now be used to advertise everything from breakfast cereal to cures for VD – without your permission and without any compensation to you. Seriously Instagram? And you thought people would be okay with this?

I wrote earlier this year about how many photo-sharing services claim certain rights with regard to the photos you post on those services. Those rights are mostly to do with promoting the service itself and the rights necessary to hold and display your photos. That language reads “a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content” (from the previous Instagram terms of service.) I think for anyone not interested on a professional level about the use of their photos, that requirement was on the borderline of acceptable.

Instagram has gone way further than that, though. In agreeing to their new TOS, you are permitting this:

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.

That’s crazy, IMHO. I can’t imagine they could skirt the requirement to have a model release for recognizable people, so the photos from your daughter’s ballet recital or your son’s birthday party are probably (probably!) safe, but the sheer audacity of the rights grab ensures I won’t be posting any more photos to Instagram.

Bloggers in paradise

This makes me very sad, because I have just lately warmed up to Instagram and its social community. Kind of reminds me of the stand I took against Pinterest earlier this year – it pains me to have to stop using a service I’ve come to love, but I’ve managed to survive the year without Pinterest and I’ll find somewhere else to share my Instagram iPhone photos.

If you love the look of Instagram but don’t care about the social sharing, you can continue to use Instagram with your iPhone in “airplane” mode – your iPhone can’t post to Instagram’s servers but does save a copy of the photo to your iPhone’s photo albums. I’ve got my settings programmed to save both the original full-sized photo without the filter and the cropped version with the Instagram filter. There are other options, too — Twitter now apparently has filters on its photo-sharing interface, and Flickr just rolled out a mobile app that has built-in filters as well. (And speaking of that – yay Flickr! The old iPhone app was beyond horrible, but I am really digging the new one!)

I read one article that tried to argue that Instagram photos are meant to be disposible anyway, and people were being “whiny babies” when they complained about the potential use of their photos for advertising – that the right to sell your photos is a fair “price of admission” for the use of the service. They argue that the potential that one of your photos might sell is “infinitesimal” — but I felt that way about Getty Images, too. They have more than 80 million photos for sale, but more than 100 of mine have been sold.

You might wonder how I can be upset about the Instagram rights grab and still license some of my photos through Getty. The difference is that (a) I got compensated for every single one of them and (b) I always have the choice about whether to license an image or not. Two big distinctions, IMHO.

What do you think of all this? Are you bothered by the changes to Instagram? Would you care if your photo of your feet in your favourite fuzzy slippers made it to a billboard somewhere? Or will you shut down your Instagram account?

Oh Internet, how you continue to vex me, you fickle mistress…

Edited to add: so I was interviewed by CBC Radio about this at 3:30 and they were going to air the clip on the 4:30 news, but a few minutes later the reporter called me back and said there was some question about what Instagram was actually saying. A couple of hours later, this retraction/clarification was posted by Instagram. In part:

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 like 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.

Ownership Rights Instagram users own their content and Instagram does not claim any ownership rights over your photos. Nothing about this has changed. We respect that there are creative artists and hobbyists alike that pour their heart into creating beautiful photos, and we respect that your photos are your photos. Period.

Hmm. I am not convinced enough either way to delete my account entirely, but will closely watch how this shakes down.


{ 12 comments… read them below or add one }

1 Jody December 18, 2012 at 8:36 am

I’m waiting to see what the fallout is (Instagram MAY backpedal) but if the terms stay the same, no WAY am I using their service.

I am very worried about all the middle-schoolers and teens who use their service, though, and who may not notice or care about the implications here. I am sorry, but access to server space is NOT worth the cost of someone selling your product to someone else. No way.

2 DaniGirl December 18, 2012 at 8:46 am

That’s a very good point Jody – my kids aren’t quite old enough to have mobile phones yet so that one didn’t cross my radar. However, I can’t imagine how they’d skirt the requirement for model releases for photos of people so those would probably be exempt…. but then again I never would have imagined Facebook/Instagram would pull a stunt like this, either. Who knows?

Like you, I hope they backpedal but I’m sure they’ve thought this one out. Facebook has stumbled on the rights issue before, so you’d think they’d have seen this coming. *shrug*

3 kev December 18, 2012 at 9:11 am

Value is in the eye of the beholder. I see a lot of my phodo friends reacting very strongly to the ToS change, and we talked a little about it with the kids last night. Their take is pretty similar to a lot of others, which is “have you _seen_ the pictures I post on Instagram?” That’s where the gap is for a lot of people, they don’t view their imagery as a product, and phodos perspective is (understandably) a little different.

I find instagram to be a fun service, but I wouldn’t think of using it for anything I particularly cared about/thought had value. Some content isn’t worth protecting, and pretty much everything that goes up on Instagram falls into that bucket for me. I see a lot of friends deleting their accounts, and that’s their decision. It’s a reaction to a loss of control of your rights, and I get it, but I also wonder how many people sell the super-saturated, lossy images that instagram stores.

I could care less about them using the crap I post, but I do care about them using my name and associating it in advertising. The policy is reasonably similar to Facebook’s (Instagram’s parent) Ads + social context, with the added use of content you’ve uploaded. I’m not crazy about it, but I’m a bit of a pragmatist, and it is not inexpensive to run the service.

What I wish Instagram had considered was giving its users the option of going “Pro”, and allowing for the opt-out for that. The service costs money to run, and I understand wanting to recoup that. It seems like a bit of a no-brainer to charge a few ducats a year for the folks that do value the content they post and the service they post it to, and give them the option to control how their content is used. Most people won’t care, and it gives the user base who does an option.

Personally, what I post to Instagram is throwaway. Filters help make my boring, everyday snaps fun, and the quality of the imagery that makes it up there is usually pretty terrible. I may delete my account, but I’ll probably wait a while. I’ll also give my feedback directly, which is what everyone should do, because that’s how you get people who make the products to make sensible changes to policies that are tipped too far one way or the other (the media brouhaha helps, but asking for options is something I don’t see anyone doing).

The nice part about all this is you have a choice. Don’t like it, leave… or ask for a refund. 😀

4 DaniGirl December 18, 2012 at 10:53 am

The thing with Instagram and selling, IMHO, is that the look is a hot trend right now, and that sells. Of the ten or a dozen photos I sold last month, half of them were shot with my iPhone – but in five or ten years I know they will look horribly dated, while some of the portraits I’ve done this year ought to stand the test of time. (I hope!!) I suppose it depends what you’re using it for, too. Some of my Instagram shots are definitely throw-away, but when I made the book last week of my iPhone photos I was reminded how much I really love some of them.

I really like your idea of a pro option – I’d pay a buck or two for that. Too bad you’re not on staff there!

5 Karen December 18, 2012 at 10:53 am

I thought of you and all my other photog friends as soon as I saw this today. IG is going to get a backlash and I think they will backpedal, but they’d already lost me because of the Twitter thing a couple weeks ago. This just makes me want to delete my account that much more.

Do I think my pictures on IG are all that? No, they really aren’t. It’s not about the quality of the photos. It’s about the audacity of the TOS. I would like to see a mass exodus from IG that shows Facebook we’re not going to keep putting up with this. How valuable will their billion dollar darling be with significantly fewer users and photos?

6 DaniGirl December 18, 2012 at 11:15 am

Karen: “It’s about the audacity of the TOS.” Exactly!

7 Lynn December 18, 2012 at 12:40 pm

I read somewhere else today that all your current Instagram pics will be sellable under the new license. So it’s not enough to just no longer upload – you would have to delete all previous photos stored there by January 16 to avoid them being sold any time in the future. I really, really can’t believe that’s going to happen, though. Can this possibly be for real?

8 Krista (@kristahouse) December 18, 2012 at 4:07 pm

I have to say that Karen said it right: “It’s about the audacity of the TOS”.

As an app developer, this is when I shake my head. This is what happens when an app is released as a free service. Something has got to give eventually, money must be made somehow… and in this case it’s this crazy TOS. It didn’t have to come to this!

Those servers hosting all our photos isn’t free, neither is the upkeep of the app itself. It’s got to be paid for… unfortunately IG took our choice away. I would have gladly paid for a pro account. Having a choice is nice.

I’m just really glad that Flickr updated their app. I guess I’ll amble my way over to their site and slap down a few bucks for their pro account.

9 Jody December 18, 2012 at 6:23 pm

It’s not just the audacity of the TOS, though. I would not feel better if my “garbage, who cares” photo was sold for $50 and Instagram pocketed the change. It was my creation even if it was a throw-away creation, and knowing that a billion-dollar corporation profited off it would almost be worse than if they took a quality photo. Instagram/Facebook is now saying that all our photos have a potential dollar value — why would we give that value away?

If they can’t run Instagram for free/ad revenue, then start charging people for server space. Don’t steal from creators. (Think about what a huge Instagram database whose creators charge nothing, allowing Instagram to low-ball the costs, does to the demand for other photo services. Especially when the purchasers also have alteration rights to those Instagram photos…)

10 Mary @ Parenthood December 18, 2012 at 8:27 pm

Well, the backpedalling didn’t take long! All the same I am still just as happy to have my pictures stored on my own servers where I don’t have to worry about terms of service. Glad I have that option!

11 Anonymous December 19, 2012 at 10:17 pm

I will admit, I am somewhat attached to some of the photos I’ve taken with my phone and posted to IG (crappy filters aside), but that’s sort of beside the point. I didn’t interpret the (original) change to the TOS to mean ‘sell my images’ but, like Kev, I was and am mostly concerned with them using my name and content for advertising without my permission or notification.

I’m going to wait and see what happens, but in the meantime am searching for a new phone pic sharing platform. Maybe Flickr’s new app is less desperate and more savvy than I gave it credit for 😉

12 amanda December 19, 2012 at 10:22 pm

aack, anonymous up there is me. I misspelled the captcha thing ( I can never get them… maybe I am a bot?? :D) and it must have erased my info. heh.

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