Instagram’s new Terms of Use are mostly comparable to other social networks. Mostly….
I originally ran this post last night. Pulled it after getting torn a new a-hole (it was too late for me to get into that discussion — I’d been up from an all nighter).
It’s back with a few changes and a few additions. I think my points of the original post were that these new terms of service are not much different than the current ones and no different than the TOS currently used by Facebook, Twitter, Hipstamatic and others.
I’ve made a few changes. It looks like the sub-license clause can be contrued to mean that Instagram will become the world’s largest stock photo agency on January 16. Does it mean that they will be? I still don’t think so. It was explained to me last year why the language had to be this way. The ability to use my images for in-network advertising upsets me much more than Instagram selling my photos for stock photography. Facebook, Twitter, and Hipstamatic have had this clause for a while and to the best of my knowledge there has not been any wholesale appropriation of intellectual property.
Day-after headlines like “Instagram Asserts Right To Sell Users’ Photos” which then go on to basically rehash the new TOS without any clarification from Instagram I think are sensational, a little irresponsible and are feeding the frenzy.
In the end, I’ve read the TOS. I’ve made a choice to keep my images on Instagram. And Facebook and Twitter. Your choice may be different, and I’ve added a link to help you delete your Instagram account.
The bottom line is that we need to stay on top of these and make educated, not emotional, decisions. Your choices have consequences. Among those conesquences are the loss of a large social network that you have personally invested a lot of time and effort to build. I’m not talking about Instagram as a whole, I’m referring to your followers on any social network.
Since writing this post, I read a great piece about why any clauses like this are wrong. Here’s the link to “No, what Instagram just did to its users is not acceptable” by David Meyer on ZDNet. In it, he makes some excellent points. Basically, Instagram is shitting on its user base, but it’s now doing so in the same way that Facebook, Twitter and several other photo sharing sites have been shitting on their user base for some time.
The internet is still an untamed place. If you want to share and for people to see your work, you now have to be ready to give up some control. If you want to maintain control of your works, you should consider rethinking your social media strategy.
This post will help you choose your next social photo sharing network. All things considered, Flickr is looking really good right now.
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It’s all over the Internets today. Instagram’s Terms Of Service are changing as of January 16, 2013. There are a lot of upset users threatening to delete their Instagram accounts, and some of LoFi’s Twitter followers already have.
There’s a lot of panic about Instagram’s new TOS. I think most of it is unfounded. Drawing on my two semesters of Contract Law (keep that in mind while reading this post…), I take a look at the relevant new terms from Instagram, their current terms that we’ve been shooting and sharing with for some time, and compare them to other popular social photo sharing services. Before you go off and delete your Instagram account, you need to read this. >>>
Honestly, there’s not much here in Instagram’s new Terms of use that’s different. I think for nearly all users, the panic is unwarranted. I think it’s a poor bit of serendipity that the new terms were announced within days of Facebook’s announcement that Instagram will be monetized and i think a lot of that anger is seeping over into what is essentially a clarification of terms that are already there.
Instagram’s new Terms of Service are written to bring it in line with Facebook’s and make it easier to share your sharing, liking, location and other data across the two networks.
They do read pretty sinister and perhaps could have used a little polish from Facebook’s Public Relations before being released, but I don’t really see anything new here that Instagram can’t do with your images already. (UPDATE: The language could be construed that Instagram *could* license rights to your image to third party. Usage beyond that is not clear). The new section clarifies things a lot more, but by uploading images to Instagram, you have already been giving them the right to with your images as they please.
The new Terms of Use add a “use of likeness” clause that I’m a little uncomfortable with but I believe was already implied in the previous TOS. See the quote below. In a conversation I had with The MPA’s Daniel Berman, he suggested that this is simply an avatar grab — a conclusion that I agree with.
Instagram, Facebook, Hipstamatic, and to a lesser extent Tumblr, all of these services have similar terms. Basically, all of them let you keep the ownership rights of your images and place no restrictions on your usage of them. But by using these networks, you are essentially giving the services the option to use your images forever, for free, however they see fit, until you remove the content from their network.
It’s letting them use your stuff for free which many users are angry about, but it’s not stealing the piece outright from you.
There are very few users who would be directly and significantly impacted by these terms. Specifically, they would be photographers and artists who at some point may need some very specific and restrictive licensing for their images for rights-managed usage, publications and other very focused uses. In real world usage, the new terms won’t effect most users much differently than they already do.
Our images may turn up as ads that our friends see in our Instagram feeds. But that’s something Facebook has doing for some time.
With all of these services, the only way to opt-out of their using your images is to remove your photos from their server and delete your account. That’s a very drastic and irreversible measure. If that’s what you want to do, fine. But don’t be doing so on the basis of Instagram’s new Terms of Use. In my opinion, they don’t give Instagram many new powers that they haven’t already had in a legal gray area sort of way. Even after updating this post, I still think Instagram has already had this ability.
I use all of the services listed in this post. I’ll continue to use them all for the time being based on their current terms of use. In light of all this information, this is my choice. You now have more information to make your own. All of these services have already been harvesting our usage data in other, much more pervasive and profitable ways.
I don’t think that Instagram’s new Terms of Usage are really that much different than they are now and I think that they are in line with the terms we click past on other services. I’m not worried about Instagram selling my images of airports and my dad for a mint. My privacy has already been gathered, aggregated, sold and sub-licensed.
Terms Of Use Compared
Grab a cup of coffee. It gets pretty tedious from here out.
Instagram’s Terms of Use — Current and New
Instagram’s current Terms of Use is a concise, easy to read document of about 1,100 words. Their new Terms of Use is a lengthy, bloated beast that’s over five times as long — over 6200 words. Most of them are in Lawyer-ese. Facebook’s legal team must be paid by the word.
Here’s the passage that has the iPhoneography community up in arms (emphasis mine):
1. Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, except that you can control who can view certain of your Content and activities on the Service as described in the Service’s Privacy Policy, available here: https://instagram.com/legal/privacy/.
2. 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….
Here’s the comparable passage from Instagram’s Terms of Use that’s in effect now:
1. Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the Instagram Services. By displaying or publishing (“posting”) any Content on or through the Instagram Services, 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, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly (“private”) will not be distributed outside the Instagram Services.
Currently, Instagram can use our publicly shared images — and possibly your likeness (this is currently worded a little gray) — as they see fit within and promoting Instagram. Under the new Terms of Use, Instagram will be able to make money by licensing your images, likeness and information to third parties for advertising and promotions.
If Instagram wanted to gather a bunch of your images, then make and sell a jillion t-shirts without paying you, they can still do that now under the current Terms.
The clause that has the internet in an uproar is “you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service.” I’m not going to argue its merits (or lack of) here. Other networks have had the exact same clause for a while, too. Let’s have a look….
If you’re set on deleting your Instagram account, this link here will help you, “How to Download Your Instagram Photos and Kill Your Account” on Wired.com
Here’s Facebook’s comparable Terms Of Service:
You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:
1. For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
Pretty much the same thing only surprisingly with fewer words. By using the network, you grant Facebook a license to use any of your public content — words, images, etc — for free, however they want, even if that means leasing out the license to a third party (that’s the sub-licensable bit). It was in the “I Agree” that we all clicked past.
Twitter’s Terms of Service are brief, but pretty clear. Emphasis added.
3.2 You. As between you and Twitter, you retain all worldwide right, title and interest in and to your Service, excluding the Twitter API, Twitter Marks, and the Twitter Service (and any derivative works or enhancements thereof), including but not limited to all intellectual property rights therein. You may provide Twitter with comments concerning the Twitter Content or Twitter API or your evaluation and use thereof. You agree that Twitter and its designees will be free to copy, modify, create derivative works, publicly display, disclose, distribute, license and sublicense, incorporate, and otherwise use the feedback, including derivative works thereto, for any and all commercial and non-commercial purposes with no obligation of any kind to you.
Hipstamatic
I like Hipstamatic a lot. I don’t share there, but many users do share through Hipstamatic’s community. Here’s the comparable passage from their Terms of use (again, emphasis mine):
You grant to us a non-exclusive, transferable, sub-licensable, worldwide, perpetual, royalty-free license to use, in any manner whatsoever, all or any portion of your User Submissions in connection with our Websites and Products…. You are still the owner of your User Submissions and are still free to use them in any manner you choose….
Again, many of the terms and concepts are the same. There was a similar uproar when these terms were rolled out. Lucas Buick, CEO of Hipstamatic even wrote a response to Hipstamatic’s users explaining the company’s intent (a very important concept in contract law). You can read it here. I’m not saying that Instagram’s intents are the same. I’m just pointing out the similarity in the legal language.
Tumblr
Here’s what Tumblr can do with your Intellectual Property. The Tumbler Terms of Service is pretty cool. They translate the terms from Legal-ese to a more easy to understand variant that us non-lawyer types can understand. Again, I added emphasis.
Subscribers retain ownership of all intellectual property rights in their Subscriber Content, and Tumblr and/or third parties retain ownership of all intellectual property rights in all Content other than Subscriber Content.
I removed a paragraph and I’m skipping to the summary here
When you upload your creations to Tumblr, you grant us a license to make that content available in the ways you’d expect from using our services (for example, via your blog, RSS, the Tumblr Dashboard, etc.). We never want to do anything with your content that surprises you.
… You also agree that this license includes the right for Tumblr to make all publicly-posted Content available to third parties selected by Tumblr, so that those third parties can distribute and/or analyze such Content on other media and services.
An example of what it means to “make all publicly-posted Content available” to a Tumblr partner for distribution or analysis would be if we licensed a feed of already-publicly-available Content to a partner, similar to how Twitter makes feeds available through its Streaming API.
Flickr
Of the major photo sharing services, Yahoo!/Flickr’s seems to be the least intrusive. Here’s the relevant part of Yahoo!’s terms. Yahoo!, of course, is the parent company of Flickr.
Yahoo! does not claim ownership of Content you submit or make available for inclusion on the Yahoo! Services. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services, you grant Yahoo! the following worldwide, royalty-free and non-exclusive license(s), as applicable:
a. With respect to Content you submit or make available for inclusion on publicly accessible areas of Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purposes of providing and promoting the specific Yahoo! Group to which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Yahoo! Services and will terminate at the time you remove or Yahoo! removes such Content from the Yahoo! Services.
b. With respect to photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of the Yahoo! Services other than Yahoo! Groups, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! Services solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Yahoo! Services and will terminate at the time you remove or Yahoo! removes such Content from the Yahoo! Services.
Right now, Flickr has the most artist-friendly terms of service. Basically, there’s nothing in Yahoo’s Terms of Use that grant them an indefinite, transferable, free license to use your works. To paraphrase a famous quote, what goes up on Flickr, stays on Flickr. I’ll have more on this when I take a look at the new Flickr app sometime soon.
To date that I’m aware of, none of these services have abused their license to use members’ intellectual property by selling or licensing images to third parties without expressly notifying users when they may do so.
That doesn’t mean that these terms won’t change in the future. If your art is important to you, it’s up to you to stay on top of the terms of usage and make the choices that work for you.
=M=
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Hey, you made it all the way down here! Thank you for reading this one. What do you think of Instagram’s new Terms of Use? Let us know in the talkback below.
