The Instagram Terms Of Service Controversy

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Instagram’s latest update, a new Terms of Service, has gone the wrong kind of viral. The buzz started slowly yesterday with a few articles about the new TOS, which takes effect on January 16th, 2013. Those were followed by a few alarming Facebook and Twitter posts about the changes in Instagram’s TOS. But by noon today there was a full-blown explosion of articles and posts on the subject, including lots of talk about deleting Instagram accounts. So what’s all the excitement about? Basically, Instagram’s new TOS includes what looks like a blanket rights grab on all photos posted via their wildly popular mobile app. In other words, it appears that Instagram is claiming the right to do whatever they want with any photos you upload with the Instagram app – including selling them. At least that’s the story that’s been spreading like wildfire across the Web. But is that actually true? Does Instagram intend to sell our photos?

Note: This story keeps evolving as I write it. This afternoon, in a blog post entitled, “Thank you, and we’re listening,” Instagram co-founder Kevin Systrom posted this statement: “To be clear: it is not our intention to sell your photos. We are working on updated language in the terms to make sure this is clear.” Read the whole blog post, here >>

Instagram - Please Don't Sell My Photos!

As a recent Instagram convert as well as a paranoid photographer who’s had to resort to the legal system for compensation in the past, I got all riled up just like everyone else when I started reading about Instagram’s new terms of service. Accurate or not, this Gizmodo article was the most entertaining thing I read about Instagram’s new Terms of Service: Dear Instagram, Please Sell My Photos. However, since I’m writing an article on the subject, I dug a little deeper to make sure I completely understood the situation. And as it turns out, the terms of service changes aren’t quite as dramatic as they’re being portrayed across the Internet. In fact, Instagram’s claims to your images haven’t really changed at all. They’ve just made their intention to use your Instagram photos more obvious. In the previous terms of service they said:

“you hereby grant to Instagram 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…”

That’s pretty much a boiler plate terms of service statement that says they can do whatever they want with anything you share via Instagram. And the truth is, you’ll find most (but not all) Web sites and online services where people share photos have similar clauses in their TOS. The first clause of the “Rights” section of the new TOS includes almost exactly the same wording. What’s changed is that Instagram is now making it much more obvious that they intend to use photos uploaded through their network to make money. After all, Facebook paid a billion dollars for Instagram and they need to get a return on that investment. To that end, the second clause in the new “Rights” section reads:

“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…”

Instagram’s New Terms of Service >>

Really, they could have left their TOS alone and used our Instagram photos in any way they saw fit. Updating the terms of service with that second clause essentially gives us notice that they didn’t actually have to give. So instead of getting angry, maybe we should thank them for making their intentions clear.

I reacted to the new terms of service just like most photographers. I got all excited about something I hadn’t read and didn’t really understand. We (photographers) should all be more aware of what we’re agreeing to when we use a service like Instagram, Facebook, Flickr, etc. Yes, it’s a pain in the ass to read the TOS and other legal stuff and then keep up with them as they change. The bottom line here is that Instagram is a business that needs to make money if they want to stick around. They have a fun service that offers very clear marketing benefits to photographers. We need to be aware of the pros and cons, the costs and the benefits of using that service. That’s the only way we can make an informed decision about whether the benefits exceed the risks. For example, by simply posting a photo on the Web we risk having it stolen and misused. It’s happened to me and it’s likely happened to you. It’s not right but it’s one of the costs of promoting your work on the Web. The reality is, the risk to me of sharing a low-res image on Instagram is very, very small. And the potential benefits and pleasure I receive from sharing that photo far outweigh anything I think I can lose from using Instagram. Or Facebook. Or Flickr…


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About the author: Photo-John

Photo-John, a.k.a. John Shafer, is the managing editor of PhotographyREVIEW.com and has been since the site launched back in 1999. He's an avid outdoor enthusiast and spends as much time as possible on his mountain bike, hiking or skiing in the mountains. He's been taking pictures for ever and ever, and never goes anywhere without a camera.


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