New Terms of Use for Instagram: Users React with Outrage

chasejarvis_INSTAGRAM ANOTHER UPDATE 12/19: today Instagram did a much better job in the media explaining their position – specifically around not “selling” your images as in “here ya go company X, use this in your next billboard”. As an artist & entrepreneur, having been involved in IP licensing all my professional career and navigated these waters before…as such I think I understand their challenge better than most. The legalese required around IP creators (in this case photographers using the platform ) in a social sharing environment is tricky and has some specific requirements and often positions such a service in an unintended light. Clearly IG wants to make money in/around your photos – they’re a business. But without getting in the weeds on that, the key point they articulated more clearly today is their lack of intent to outright “sell” images. That’s not their game – at least not yet. I’d guess those inside the org are trying to position the widest possible array of future revenue streams so that they don’t have to change the ToC much in the future as these things always create a shitstorm for the social sites and they can’t do that without going to great lengths to explain this to their community. There are still open issues that many creators will take up with such ToC (as there are in Fbook for example), so there is still work on their part to be done, but there is likely a future where the words in the ToC can better capture the ground between Instagram and it’s users. TBD.
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UPDATE 3:00pm Pacific Time 12/18: Instagram has rescinded its position. I applaud them. I hope what comes back (and it will) will be better, and more in accordance with the community they created in the first place. Check out co-founder statement here.
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NEWS: You might remember the well-known mobile phone app Instagram made big news a few months back when it was acquired by Facebook (FB) for $1 billion. Instagram is back in the news today, especially…ahem…with creatives and photographers, with an update to its terms of service that will let the company sell users’ photos to other companies.

The new terms of use (below for your reference), effective January 16, have many changes — but the biggest changes came in the section about users’ rights. “A business or other entity may pay” Instagram to display users’ photos and other details “in connection with paid or sponsored content or promotions, without any compensation to you.”

Users can’t opt out of the new provisions. The only way to avoid them is to delete your Instagram account.

This is a rather large change effing ginormous change in the terms. The current terms simply note that “Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content.” The new terms make it a “sub-licensable” agreement, with an updated emphasis seemingly focused on Instagram’s ability give content to third parties. In addition, users waive their rights to a class-action lawsuit or class-wide arbitration. A note at the top of the new terms, in bolded caps, says that any dispute between Instagram and a user “will be resolved by binding, individual arbitration,” unless the user opts out of the provision in writing. (If you want to do that, you need to snail mail in your opt-out statement. The address is buried in the Terms of Use: search for “Arbitration Opt-out.”)

ANALYSIS: Instagram is blowing it hard on both the WHAT (selling out your images with no profit to you) and the HOW…by changing the ToC to gobble up your imagery bound to by using the service after allowing users to build up huge followings and large libraries of imagery. Lame sauce and an assault on your work.

Let’s call it what it is… this idea isn’t new, it’s just a shitty way – the shittiest way – of going about monetization. In truth, I had plans to allow photographers to opt into a sales program as a source of income for photogs if they so desired back in 2009 when I launched Best Camera app, the first photo app to share images direct to social networks (top 20 App of 2009 – Wired, NYTimes, Macworld, etc), but there were key differences then…the same key differences that, if I were in charge of Instagram’s ToC (and what I had in my roadmap for Best Camera before it was derailed), could make/have made a huge benefit for photographers. Here’s a different approach that would be acceptable

1. Make the program an opt in program. Check a box in your user settings that says “this image can be sold (or x’d or y’d whatever)”, with some legal jargon, and have only those images be available in the marketplace. Make it image specific. For the people who want to manage that – who want to earn money – this won’t be a burden. For those who don’t want to play, it’ snot an issue.

2. Assuming #1 above, then split the revenue with the photographer. As the creator, you should own the right to exploit the work you create. A simple rev share would generate tons of dough and be perceived as a win for photography, not an attack on it by a multi billion dollar company.

There are just two things that could have changed today’s news into a huge win instead of a f*&king disaster. And FWIW, there are 100 other ways to monetize their platform that could be a win for content creators instead of an assault. If they need help, Kevin (founder), just give me a ring. I’ll help outline some alt options for you.

I’m flattered that not so long ago Instagram was a lift and stamp copy of Best Camera. I had my reasons for letting BC go that way and I think they did a marvelous job of executing – better than I ever could have done, especially without giving up my career as an artist. I love the results of what they’ve been able to build, almost flawlessly to date, a massive global community creating photos! But let’s face it. Instagram was a silicon valley startup on its second pivot (translation: tap into something hot right now and try to make it happen to get your investors money back…which they did). They saw market opportunity, not photography. The founders are nice guys (we have lots of the same friends) who certainly “like” photography, but they are not photographers, and they don’t have the sensitivities IMHO required to navigate the creators’ landscape (or if they have them, we have’t seen them yet…). I hope they can recover. For them, for you. I actually think they CAN recover. These guys are super smart and I’ll be in support of them if they can change and adapt to what the world wants – fair terms. But… For now, I recommend that those of you on the platform let them know that this isn’t cool.

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104 Responses to New Terms of Use for Instagram: Users React with Outrage

  1. JC Ruiz December 18, 2012 at 12:21 pm #

    I completely agree Chase that this is some nonsense. Zuckerberg and his underlings got too greedy for their own good. Although I will not delete my Instagram account I will now be watermarking every photo I post. I wrote a blog post, http://blog.jc-ruiz.com/instagram basically saying the same thing.

  2. toledo wedding photographer | Brittani December 18, 2012 at 12:24 pm #

    Are they serious? Why can they do this? I can’t believe such a great tool/product/company would go and do this. I hope they do think about what they’re doing and change the policy.

  3. Mike Folden December 18, 2012 at 12:25 pm #

    It’s time for an update on BestCam!

    • Har Rai Khalsa December 18, 2012 at 12:41 pm #

      ^agreed!

    • Alan Matthews December 18, 2012 at 1:53 pm #

      Agree with Mike. We photographers like Instagram in order to show our creativity as well as show everyone what we had for dinner! But, the grab for rights/$ makes me ill.

  4. Staton December 18, 2012 at 12:26 pm #

    I’m putting IG on the back burner for now.

    I’m really excited to see what photographer Jeremy Cowart is due to release very soon in the way of photo sharing/manipulation app.

  5. Brian December 18, 2012 at 12:30 pm #

    Chase,
    TheVerge just published an article stating that Instagram’s TOS have been misinterpreted and the concern we all have is unfounded. I’m only just reading their article — care to read as well and give us your thoughts?

    http://www.theverge.com/2012/12/18/3780158/instagrams-new-terms-of-service-what-they-really-mean

    • Why SEO - Matt Curry December 19, 2012 at 4:15 pm #

      Looks like they are really trying to retract their statements. I suppose they forgot how fickle social media users are. And with good reason, there are 5 or more other image sharing networks out there.

  6. jeremy earl December 18, 2012 at 12:34 pm #

    Doesn’t the terms say making your account/photos private opts you out of this service? “except content not shared publicly (“private”) will not be shared outside the instagram environment” a lot of people are quoting that as an opt out but are they right?

  7. Anonymous December 18, 2012 at 12:35 pm #

    Can they still monetize your images if your account isn’t public? The legal jargon is unclear.

  8. Manish Vaidya December 18, 2012 at 12:35 pm #

    Awesome! great to see people care so much about what Zuck would call “minor tweak”! come on over to Streamzoo – we dont sell your pics & great community too! (Founder)

  9. eric von lehmden December 18, 2012 at 12:40 pm #

    are you freaking kidding me. unbelievable what people will do for a dollar bill. guess i will be taking all of my instagram photos in airplane mode from now on.

  10. Klifton Keplinger December 18, 2012 at 12:41 pm #

    Frankly, Chase. I’m a little surprised at this knee jerk reaction.

    I thought of you, in specific, when this news broke, and thought “You know what, Chase will show us that a professional can navigate through this, and how to do it.”

    Kinda disappointed.

    • doug December 18, 2012 at 12:55 pm #

      what???? “You know what, Chase will show us that a professional can navigate through this, and how to do it.”

      chase you need to become a lawyer I guess.

      • Klifton Keplinger December 18, 2012 at 12:57 pm #

        No, just this ill-conceived knee jerk reaction that somehow Instagram is going to steal the work of photographers doesn’t seem consistent.

  11. Fabricio December 18, 2012 at 12:43 pm #

    I don’t understand how this guy (Zuck) will walk the streets and I don’t understand why people make accounts with him.

  12. David December 18, 2012 at 12:43 pm #

    I’ma Gointo instagram
    -access account
    -delete
    -shame

  13. Dan December 18, 2012 at 12:45 pm #

    Instagram just tweeted about having heard our concerns and they will “have more to say soon”. Let’s hope it’s good stuff!

  14. Matthew Celeste December 18, 2012 at 12:56 pm #

    I know a lot of people think this is a lame move on Instagram’s part and want to get mad about it, but Facebook has the same sub-license clause in its TOS agreement.

    If you post to the internet, expect it to be fair game. How long is everyone going to continue to be shocked about stuff like this. Let me rephrase everyone’s concerns:

    “I took pictures on my phone and then uploaded them over an unsecure network to host computers in an unknown location with my free account that I willingly signed up for and participated with and now I am enraged that I don’t retain exclusive rights to the images while they’re being hosted for free on Instagram’s servers.”

    Does it still sound so crazy?

    For the record, I am a professional photographer and I use Instagram casually.

    • Masahiko F. December 18, 2012 at 4:26 pm #

      Yes, if you post to the Internut, you can expect your images to be improperly used, stolen, etc by others. However, we do not give up our rights (copyright) just because lots of folks knowingly or unknowingly violate them. Copyright itself is behind the times and should be updated, but I doubt any update is going to say “If you post copyrighted items to the Internet, you give up all rights. Duh.”

      Enraged at Instagram? It is exactly what I expect from Facebook and its companies. So no, we should not be surprised/enraged that Instagram—far from giving anyone anything for free—is selling us, our data, and apparently our photos. The space they are “giving” us “free” is just like the space supermarkets give potatoes “free” until they are sold. We are the goods for sale, not customers. Instagram/Facebook made it a little too clear in this case. I am sure they are working on a Facebook style “Oops” to calm all of the potatoes down while they find another less obvious way to continue the same thing. (Golly gee, we didn’t mean what we wrote and we would have never really have done such a thing. It is just that our lawyers have no experience in writing ToS and as a young naive company, we never thought anyone would mistake what we wrote as actually meaning what it said. Trust us.)

      There are other places some, free for basic services, where you can upload photos which have better written ToS that do not assume rights to our images. So it is not a done deal that anytime we upload an image to the Internut service we have to expect that service to sell it without compensating us.

  15. Ray December 18, 2012 at 1:00 pm #

    FYI – Flickr launched a very sweet update that rivals Instagram in the App Store. Come back, perhaps?

  16. Jennifer Koskinen December 18, 2012 at 1:11 pm #

    I’m still trying to understand how this is ANY different from Facebook’s terms, or do people not realize that Facebook has the same sub-licensable terms?
    “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.”
    (from FACEBOOK)

    • Matthew Celeste December 18, 2012 at 1:14 pm #

      Exactly what I had pointed out. Glad someone else noticed that, too.

    • David Eichler December 21, 2012 at 11:46 am #

      Yup. Seems to me that what Instagram did was to make more explicit that extremely broad right to sublicense user content without any compensation going to the user. There are other websites with similar terms of usage. So beware. My feeling is that these kinds of fundamental terms of the business relationship should not only be buried among the boiler plate legalese of the terms of use. Websites should emphasize these kinds of terms up front in their descriptions of the service.

  17. Lori Nicoli December 18, 2012 at 1:26 pm #

    Thanks for this, Chase. I’m deleting my Instagram account, asap! Hopefully, that will send the message. I will, however, watch for updates in case they implement new policy – your suggestions would be great, if they followed through on them!

    Cheers,

    Lori

  18. Maik Dobiey December 18, 2012 at 1:32 pm #

    isn’t that a bit like having a term like: After posting more that 100 images can sell your house and your neighbours house (since your images are not always free of third party rights) without compensation tu the user”

    I find it very surprising if you can legally take away someones rights and property without even a signature…

  19. kim james December 18, 2012 at 2:09 pm #

    Are you deleting your account with Instagram?

  20. ben December 18, 2012 at 2:27 pm #

    What is this about best camera being derailed?

  21. tom December 18, 2012 at 2:30 pm #

    Chase I think you completely missed the point. Instagram is owned by Facebook. They paid a lot of money for it and now they want a return on investment.

    There are a ton of high profile photographers on Instagram with millions of followers posting incredibly good photos on a daily basis. It’s common for a lot of these folk to use images shot on high end cameras and post them to Instagram as well. EG I believe Jamie Oliver is one of those people doing just that.

    Now imagine for example a cookware company wanting to promote their wares without paying Jamie Oliver a celebrity fee yet still tap into his 750.000+ followers? With the new rules it will be Facebook cashing in on access not the celebrity themselves.

    I think Instagram aka Facebook just shot themselves in the foot. Unless they change this I can see people leaving in droves. What’s worse once you go past January 13 it like Instragram will take possession of all your digital assets stored with them. Regardless of wether you keep the account or not.

  22. Chase December 18, 2012 at 2:35 pm #

    This just out from Kevin Systrom, co-founder of Instagram, its not what you think:

    http://blog.instagram.com/post/38252135408/thank-you-and-were-listening

    Not that I care, dont like Instagram.

    • Victor Reynolds December 18, 2012 at 9:27 pm #

      I never was into Instagram; only signed onto it because family had accounts. Now hearing about the updated TOS is making me reach for the “delete” button. I currently use EyeEm and have a Flickr Pro account which are both good.

      I also read Systrom’s post on Facebook tonight. I might change my preferences on the above services to disconnect from Facebook.

  23. Eee December 18, 2012 at 2:54 pm #

    They’ve posted a reaction to everyone’s reactions, worth reading: http://blog.instagram.com/post/38252135408/thank-you-and-were-listening

    Also, The Verge have a good analysis of the terms: http://www.theverge.com/2012/12/18/3780158/instagrams-new-terms-of-service-what-they-really-mean

  24. Luke December 18, 2012 at 3:56 pm #

    Another great idea ruined by greed.

  25. João Almeida December 18, 2012 at 4:00 pm #

    The release of Flickr’s updated app couldn’t be better!!

  26. George Panagakos December 18, 2012 at 4:05 pm #

    He did not at all address the “. . . posting photos to Instagram means you grant the company “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.”

    Nor did he address the binding arbitration clause.

    These are the significant offenses.

  27. Bluestill December 18, 2012 at 5:25 pm #

    It was only a matter of time. From it’s not so humble beginnings I said this Instagram is going to be a Frankenstein. I have no heartache about voicing my dislike for instagram, and now they have finally made it official. Watermarking will only be a band-aid. Perhaps everyone deleting their FB account for a solid week or longer if need be will get their attention. I’m just saying. Let’s not justgo big, let’s go real big.

  28. Eugene Mopsik. ASMP December 18, 2012 at 5:52 pm #

    Dear Chase,

    Excellent response and analysis. Once again a service provider has lost site of who provides its life’s blood. They build their business model on the backs of photographers and yet they do not include the rights holder in their efforts to monetize. ASMP would be happy to help refine the TOC for clarity and mutual benefit. There must be respect for the creator of the works.

  29. Loren December 18, 2012 at 6:45 pm #

    I agree with you chase about putting your work out there. however this seems to fight the good nature of sharing and it is sad. This is why I am bummed the world will not see 90% of my work until i am dead. It is not that I am a great photographer but I don’t feel like I have a place to share without some kind of legal trickery to abuse my passion.

  30. Why SEO - Matt Curry December 18, 2012 at 10:37 pm #

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  31. Graham Fitzpatrick December 19, 2012 at 1:20 am #

    Lame Sauce it may be and I don’t for one second agree that any company can take the creative work of another person/business and make profit from it without compensation to the creator. They are now retracting from this position and I think we shall wait to see where/how it goes. However, what annoys me more is how so many people can use such a cool tool and store tons of images (which tend to be large files) on someone else’s servers for free?? Did everyone really think there was never going to be some sort of ‘payment’ for this service? The biggest mistake Instagram has made is their choice of revenue generation. A simple solution would be to create extra editing features/filters that users could buy (I reckon that’d make a few quid) and then possibly allow ‘business accounts’ that have a higher resolution storage capability (again charged for) and the ability to allow photographers (from business accounts) to be downloadable for a fee (set by the photographer) of which Instagram gets a commission. Simples really!!

  32. faisal December 19, 2012 at 7:10 am #

    That is a crazy amount of terms

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  33. smartphone photography lover December 20, 2012 at 4:58 am #

    Hi Chase,

    I really value your opinion, and you truly are a photo guru for me. BUT this time I do not think that you are on the right track here.
    I do not think they are going to pursue the road you would have chosen – the one which promotes the photographer.

    I find it hard to believe that a billion dollar company cannot get a relatively easy task of writing down clear terms of use right – I mean – those guys probably employ the best and most expensive lawyers available. Do we really think these people do not know what they’re writing, or why they do it?

    IT seems to me that Instagram wanted to avoid making users really angry about Instagram becoming an advertisement platform. But, compared to the current hype about copyrights, selling and advertising, the mere fact Instagram is an AD company and not an idyllic free photo community where sharing is caring. (someone has to pay for those servers, eh?).

    If you want to know more about my view on Instagram policy update – feel free to read my blog on mobile photography: http://www.snapszot.com/instagram-privacy-update-secret/

    If you are really angry about the whole situation, then I suggest you take action, but with a little twist :) – as long as we have fun using instargam everything is ok :)

    Best!
    P.

  34. Matt December 20, 2012 at 9:18 am #

    It was only a matter of time before FB ruined IG. Too bad. They may back pedal for a while, but eventually it will be totally ruined.

  35. Marc Morgenstern December 20, 2012 at 11:56 am #

    I find it interesting that these are the same people who freaked out when they were going to enact SOPA and demanded that the internet will be destroyed. But the fact that their shitty pictures could be appropriated by Instagram and all of sudden they cry foul? The ultimate in hypocrisy.

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