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.
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.
