Several years ago my father excitedly showed me his first
check for the banner ad impressions of his likeness on a regional airline
website. The celebration of his good
fortune and good looks well exceeded the payment he received. Yet it was a highlight for him knowing that
the ad agency had kept their part of the bargain that any use of his likeness
would be compensated.
Social media was abuzz today (December 17) of Instagram’s
fine print (i.e., terms of use) that any of your photographs posted after
January 16, 2013 could be sold by Instagram without notification and you would
be liable for any legal claims that arose from Instagram using your photos
without your prior knowledge.
The terms of use
(retrieved December 18, 2012) states:
"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."
“4. You represent and warrant that:
(i) you own the Content posted by you on or through the Service or otherwise
have the right to grant the rights and licenses set forth in these Terms of
Use; (ii) the posting and use of your Content on or through the Service does
not violate, misappropriate or infringe on the rights of any third party,
including, without limitation, privacy rights, publicity rights, copyrights,
trademark and/or other intellectual property rights; (iii) you agree to pay for
all royalties, fees, and any other monies owed by reason of Content you post on
or through the Service; and (iv) you have the legal right and capacity to enter
into these Terms of Use in your jurisdiction.”
CNET had the sensational headline Instagram
says it now has the right to sell your photos that was tweeted over 35K
times in less than a day. The comments
from photographers (beautiful pictures I might add) from Time.com Toolbox Unfiltered:
Photographers React to Instagram’s New Terms were more reasoned. I can’t tell if it is an overreaction or just
poorly worded terms of use [update Dec 18: Instagram founder clarified they
aren’t going to sell your photos to others without compensation]. However, one has to wonder whether greed is
taking over. Why not pay me at least a
little if you want to use my photo. For
the camera phone crowd who don’t do it for a living (see Is Instagram the Best Thing
to Ever Happen to Photography?), would it not encourage them to experiment
with even more photos knowing that they might get a check to brag about just
like my dad?
Your artistic merit displayed through filtered photos is also
part of your “online identity”. We are
seeing the terms of service creep so user beware. Some day these free services may actually get
greedy when sharing might be better for business.
