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Some Answers to Questions About Instagram’s Nebulous Terms of Service

by Hrag Vartanian on December 18, 2012

instagram-speaks-HOMEJust as the backlash against Instagram has been gaining steam (just check #BoycottInstagram), Instagram is finally coming forward to clarify what their new terms of service mean for users.

A recently published blog post by the company is an obvious attempt to assuage everyone’s escalating fears. In a blog post, I discussed the peculiar language around image ownership in Instagram’s new terms of service and we have some answers today. Kevin Systrom, co-founder of Instagram, explains who owns the images you upload to the service:

Ownership Rights Instagram users own their content and Instagram does not claim any ownership rights over your photos. Nothing about this has changed. We respect that there are creative artists and hobbyists alike that pour their heart into creating beautiful photos, and we respect that your photos are your photos. Period.

I always want you to feel comfortable sharing your photos on Instagram and we will always work hard to foster and respect our community and go out of our way to support its rights.

That’s a step in the right direction. They also add a number of enlightening points that we’ll highlight here as bullets (using their words):

  • ” … 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.”
  • “The language we proposed also raised question about whether your photos can be part of an advertisement. We do not have plans for anything like this and because of that we’re going to remove the language that raised the question.”

Now, what does this mean? Buzzfeed tries to explain what all this might mean for users and why most won’t care. They get to the heart of the issue:

Instagram is sincere. It’s emotional. It’s meaningful. And our relationship with it is deeply personal. This is what Instagram has (or had), in part because it never exploited us. It felt safe. Which is a feeling that that no other social network managed to capture, at least not in quite the same way. And now Instagram at last intends to exploit that.

That clause is, in effect, Instagram believing that it can do something better than many other companies, that it can show us sponsored content and it will be so meaningful and beautiful that we truly won’t know or care that someone paid to put it in front of us, like Nike’s beautiful Instagram page. This goes hand in hand with a deep belief in the beauty of Instagram as a medium, from which it’s easy to see how ugly words like “sponsored” or “ad” don’t belong anywhere near it. These photos aren’t ads; they’re Content. And we practically can’t wait to see them.

Can Instagram remake advertising with a dash of sincerity? Maybe. But the best article comes from The Verge, which appears has a number of valid points:

First, like every other company on the web that stores user data, Instagram has always had an expansive license to use and copy your photos. It has to — that’s how it runs its networks of servers around the world. And Instagram’s existing terms specifically give the company the right to “place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content.” Instagram has always had the right to use your photos in ads, almost any way it wants. We could have had exact same freakout last week, or a year ago, or the day Instagram launched.

And this clarification:

Instagram can’t sell your photos to anyone, for example. It simply doesn’t have permission. And Budweiser isn’t allowed crop your photo of a bar, slap a logo on it, and run it as an ad on Instagram — that would go well beyond “display” and into modification, which Instagram doesn’t have a license to do. (In fact, the old Instagram terms allowed for modification, but the new ones don’t — they actually got better for users in that regard.) In technical legal terms, Instagram doesn’t have the right to create a “derivative work” under 17 USC §106. The company can’t sell your photos, and it can’t take your photos and change them in any meaningful way.

And this criticism of the company, that I think we can all agree on:

… Instagram screwed up royally by publishing these new terms of service and not explaining them in any way

This story is evolving and we’ll see how Instagram will exactly change their terms to accommodate the blast of criticize from every corner of the web. All this doesn’t change the fact that Flickr’s app is still better in my ways.

You should also read Jenna Wortham’s excellent story on The New York Times website, “Facebook Responds to Anger Over Proposed Instagram Changes.”

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  • Nancie Mills Pipgras

    Somebody spank the lawyers who wrote the TOS. Plain speak would have saved Instagram a lot of grief.

  • http://njwv.wordpress.com/ manyfaces

    I’ve never been able to find an answer for the image rights issue. This is on both Instagram and Facebook. They say I’m granting them a license to use my images for whatever commercial use they want. They also say that it’s a violation of their terms if I infringe on anyone else’s rights with anything I upload.

    My reading of that suggests that I need a model release for any photos of people which I upload to those services. But I’ve been unable to find any clarifying information about this (although Facebook did suggest that I did need a release).

    • http://hragv.com Hrag Vartanian

      That’s pretty fascinating. Were you using the service for work?

      • http://njwv.wordpress.com/ manyfaces

        No. I just didn’t feel like I could grant someone the right to use an image of someone else for commercial use.

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