UPDATE (5 pm CST 12-18-12): Instagram has posted a blog post declaring that they are going to be revising the revised TOS. “Our intention in updating the terms was to communicate that we’d like to experiment with innovative advertising that feels appropriate on Instagram. Instead it was interpreted by many that we were going to sell your photos to others without any compensation. This is not true and it is our mistake that this language is confusing. 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.”
Yesterday, Instagram announced some new terms of service, and the social media/journalism commentariat is abuzz with some of the changes. Among the changes that should trouble student media outlets is this one which has professional photographers and privacy rights activists alike worried:
“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,”
This even applies to minors:
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.
Seriously, every 14-year-old’s parents reads the TOS on every app on his/her iPod Touch. /eyeroll.
I am not a lawyer, but I don’t think anyone should be comfortable with signing over a blanket personal model release to a company to sell your image or personal photographs. Wil Wheaton outlined some of the troubling aspects of this in a blog post: regarding instagram’s new Terms of Service.
Here’s what I’m wondering: if Kaley Cuoco uses Instagram to share a photo of her and Melissa Rauch doing something silly, does that mean that Instagram can take that photo and use it to advertise for something silly without compensating them for what becomes a use of their likeness for commercial purposes? I can see that being a pretty serious shitstorm if it happens. I’m not a big enough celebrity for it to personally affect me, but I know a lot of people who are. If someone Instagrams a photo of Seth Green walking through an Urban Outfitters, does that mean Urban Outfitters can take that image and use it to create an implied endorsement by Seth? What if the picture is taken by a complete stranger? Who gets final say in how the image is used? The subject, the photographer, or Instagram?
For college media outlets, the problem is different. Your photographers are out covering events, taking photographs that are important to your news operation and your brand. Do you want some company using your photographs without permission or payment to promote their products? I don’t.
In the past, I’ve recommended that college media outlets get on the social network of Instagram to share breaking news photos and other images within the network (I’ve recommended similar things about Twitter, YouTube, Facebook, etc.), but I’m reconsidering that recommendation until more and better information about this change is forthcoming.
I’m not sure how this will play out. Facebook (who owns Instagram) has a history of trying stupid stuff with their privacy policies only to walk them back when users pushed back. Maybe that will be the case with Instagram as well. For now, the new TOS go into effect Jan. 16, 2013. If you use the service after that, you’re agreeing to those terms.
For those who are concerned about this, here’s a post at Wired about how to download your photos from Instagram and cancel your account. Also, I’d suggest taking another look at Flickr. They just released a new iOS app with filters that are pretty comparable to Instagram’s, and more importantly, they give you a way to control how your content is used. Here’s a post from 2011 where the company (owned by Yahoo!) reiterated their policy: At Flickr, your photos are always yours.
See below for some of the media coverage of this change.
- Will Instagram’s New Advertising Policy Yield an Exodus of Celebs? (betabeat.com)
- Instagram Isn’t a Public Utility (theindustry.cc)
- Facebook Destroys Instagram (ritholtz.com)
- How Flickr can eat Instagram’s table scraps. I’m Instagram’s table scraps. And so are you. (cdevroe.com)
- Instagram demands right to sell users’ photos to advertisers (theweek.co.uk)
- Did Facebook buy Instagram just to destroy it? (siliconrepublic.com)