December 18, 2012

"Instagram said today that it has the perpetual right to sell users' photographs without payment or notification..."

"... a dramatic policy shift that quickly sparked a public outcry."
The new intellectual property policy, which takes effect on January 16, comes three months after Facebook completed its acquisition of the popular photo-sharing site. Unless Instagram users delete their accounts before the January deadline, they cannot opt out.

Under the new policy, Facebook claims the perpetual right to license all public Instagram photos to companies or any other organization, including for advertising purposes, which would effectively transform the Web site into the world's largest stock photo agency.
Think the outcry is enough to change this? Facebook must monetize all that traffic it's acquired. Remember that Facebook paid a billion dollars for Instagram.

AND: May you ought to quit gramming because it's so annoying, as explained here:



"Look at this Instagram: eggs benedict, side of ham.... Drinking mai tais on a cruise/just a coincidence it's also boobs..."

65 comments:

YoungHegelian said...

And so the implosion begins.

To all of you who say "Geez, Facebook is enormous." I say "Remember AOL, which was so big it bought Time-Warner?".

Ill-fated attempts to expand past the core business rarely go well for companies, as they just muddle what before then was a clear corporate purpose.

bpm4532 said...

"Nothing has changed about your photos’ ownership." They also say nothing will change about who you authorize to see your photos.

Yeah, right. What does this mean if they can sell the photos?

If they want to sell your photos, they must negotiate the price with you and give you the funds, first.

I see a big lawsuit coming. As usual the class-action troll lawyers will make a bundle and the individual will get squat.

traditionalguy said...

Cash is still king.

Mitchell the Bat said...

I saw this coming a long time ago which is why all my photos are of such wretchedly poor quality.

Nonapod said...

It'd be fun to design an image analysis program that could automatically categorize the literally hundreds of millions of photos on Instagram and arrange them for stock photo usage.

EDH said...

Think the outcry is enough to change this? Facebook must monetize all that traffic it's acquired. Remember that Facebook paid a billion dollars for Instagram.

I would expect a mass exodus, maybe even if they do change this, because who wants or needs to read the fine print when you know the other party's intent.

BTW, didn't Clinton have a dot.com rally back when he raised tax rates?

Julie C said...

As the parent of two teens, I can tell you with certainty that Instagram is far more important to that age group than Facebook. According to my kids, FB is over. That whole demographic spends free time checking everyone's Instagram and liking various photos. FB is an afterthought.

Emil Blatz said...

Not a problem at all if you simply don't use Facebook.

edutcher said...

You mean we can all own a copy of lactating, bespectacled Althouse?

Sigivald said...

Who the hell would want to "buy" crappy over-filtered snapshots?

(Seriously. Instagram content is almost always horrible.)

I suspect that all this means is that they want to use your photos in generated ads to push Instagram on your Facebook friends.

("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. "

Yup. That's it. Not a horrible plan to Steal Your Stupid Picture And Make A Mint Off It.

Just to get better ads on Instagram and Facebook.

Don't like it? Host your snapshots someplace else.)

chickelit said...

In the future, everything will be monetized. People will pay to comment here.

Pogo said...

All your pics are belong to us.

Lem said...

"The MSM said today that it has the perpetual right to sell tragedy photographs without payment or notification..."

Fixed it for you.

creeley23 said...

Think the outcry is enough to change this?

I'm certain it isn't. But Facebook's implosion is a ways off yet.

Facebook's "customers" still don't realize that they are the product Facebook sells.

John said...

I have been worried abut this for some time now. It is why I will not allow my son or daughter to use my computers for FaceBook, Picasa, Shutterfly or the like.

I have many photos on my drive that were taken in client plants for which I signed confidentiality agreements. What happens if Instagram gets hold of them?

I can see myself getting sued bigtime.

Fuck you Facebook. Fuck you Instagram. Fuck you Picasa. Fuck you all of you social networks.

If I want to host photos, I do it on my own server where I control them.

John Henry

Carl said...

It must be characteristic of the decay of republics that folks get excited about pissant threats. Who gives a tinker's dam? You think they're going to sell your teen's face to an online pr0n shop that will photoshop a dick in her mouth?

Well, they might. But probably not, because the online shop -- hosted in Russia by mobsters -- isn't going to bother to buy the photo of your pretty teen they find on the Interwebz. Why would they pay for what people make available for free?

I would hope people with very pretty faces already know they have something valuable, and do what they need to do to control its exposure. (And I imagine at the just being discovered stage, they actually prize exposure.) For the rest of us, with ordinary and humble mugs, this means almost exactly squat, and if we had any brains we'd get excited enough for mass action at the government acquiring increasing power to rummage around in our lives. That poor bastard rotting in an LA jail just because he embarassed the Obama Administration over Benghazi -- that should get the masses way more worried than Instagram/FB follies.

But it won't, of course. Which is why we live in the decline of the republic. James Madison would've known which was a priority.

Bruce Hayden said...

Don't know the entire legal issue here, but one thing is clear to me, and that is that Instagram is most likely not going to end up owning the copyright to the photographs. At best, it will have some sort of limited license. Sale or exclusive license of a copyright requires a signed writing, and clicking the accept or agree button on a click wrap license is not a writing. And, of course, any party attempting to sell or exclusively license the copyright to a work needs to have the legal authority and ability to do so. This eliminates minors, works owned by others, works owned by corporations, etc.

With non-exclusive licenses, it comes down to two basic questions: what can the licensee do, and what can the licensee prevent someone else from doing. Instagram may indeed have enough rights from their license to allow them to sublicense the photos, but is unlikely to have enough rights to prevent someone else (including the copyright owners) from also licensing the works.

Which is, maybe, a long way of saying that the sky is unlikely to fall on us, even if Facebook goes through with this.

MadisonMan said...

As the parent of two teens, I can tell you with certainty that Instagram is far more important to that age group than Facebook. According to my kids, FB is over. That whole demographic spends free time checking everyone's Instagram and liking various photos. FB is an afterthought.

Yes. That and SnapChat.

FB is used by my youngest now only as a notification tool, in the form of a group that people of similar ilk join.

Anthony said...

Reading the articles and the policy, this only really matters for people who take good-quality photos, and would like to make money from them. What FB/instagram are saying is "even if we make money from your photos, we don't have to pay you anything more than allowing you to use our service". For most people, and most photos, Instagram is paying too much.

The thing which I'd most object to is that it seems that Instagram retains rights to photos you delete from the service. (Can you delete photos without deleting your account?) So if you'ev *ever* posted something to Instagram, they can use it forever.

MadisonMan said...

that wasn't very clear.

He and a bunch of people of similar interests create a private group on Facebook and they all join it, and notices are posted to that group, and they all read them on their phones.

It's be like creating an email list-serve back in the mid-90s.

wyo sis said...

So, there really is no free lunch? A lot of government welfare recipients are going to be shocked.

MadisonMan said...

My daughter takes pictures of pictures I've taken, and puts them on instagram.

Who owns the rights?

Lem said...

Facebook's "customers" still don't realize that they are the product Facebook sells.

To paraphrase Mamet...

"If you don’t know who the mark is ... you’re the mark."

Darrell said...

The little guy is always screwed. Have a meteorite fall on your house and think you might benefit somehow when someone tells you that museums and collectors pay up to $Millions if the size is right? Sorry. The government will come in and take it and won't give you a penny. They own it you see. Have the doctors told you that you have a tumor--but that tumor is growing at an unheard of slow rate and you think you might have something to sell to Big Pharm? Sorry, Charlie. The surgeons can benefit financially, but not you. The courts ruled in the 1980s that you don't own your own DNA and don't have rights to what comes out of your body.

Why should you own the photographs you take?

Darrell said...

My daughter takes pictures of pictures I've taken, and puts them on instagram.

Who owns the rights?


Since they make people uploading photos swear that they own the rights to anything being uploaded, your own recourse is to sue your daughter. Sorry! Loser!

Lem said...

Why should you own the photographs you take?

Its like Obama said..

'If you took a picture — you really didn’t take that. Somebody else made that happen.'

Bryan C said...

What Sigivald said. For example, a theme park could pay to display Instagram photos tagged with various ride locations on the park's page, without having to attempt to license the individual photos from each user.

The processed Instagram photos are of pretty limited use for stock purposes, but some users save the higher resolution originals. If a company decides they want that then they'll still have to contact the photographer.

Is it a shock to discover that FB/Instagram use the content we create to make money? They aren't providing hosting infrastructure to their users out of charity, after all.

Lem said...
This comment has been removed by the author.
Unknown said...

Bad news for instagram. I have a policy that any websites that copy pictures to my hard drive transfer ownership to me.

Who should I sue for royalties?

ambienisevil said...
This comment has been removed by the author.
Bruce Hayden said...

My daughter takes pictures of pictures I've taken, and puts them on instagram.

Who owns the rights?


To start with, you probably both own the copyrights to your respective photographs, but hers is a derivative work of yours, and so you some rights to control further reproduction and distribution of your photo, even if it is shown in hers.

A lot of things go into what sort of license was granted Instagram (or whoever). Was your daughter 18 at the time she signed up (you don't need to answer this publicly). If not, then she probably couldn't legally agree to the license, or, if she could, it is likely voidable at her 18th birthday. That sort of normal contract law. And, even if she did have contractual capacity, she may not have had sufficient license rights from you to allow this third party to reproduce and maybe even sell your photo.

Bruce Hayden said...

Since they make people uploading photos swear that they own the rights to anything being uploaded, your own recourse is to sue your daughter. Sorry! Loser!

Not really. If I sell your house to someone else, without your permission, is the sale valid? Even if I swear that I own the house on a stack of Bibles? Most likely not. You (mostly) can't actually sell something (as grantor) that you don't own.

And, if I sell your house to Ann, without your (written) permission or authority, Ann's recourse is against me, and not you. You still own your house, and I would owe her for the purchase price.

Bob Ellison said...

I took a picture of this whole thread. I own everything. Ha ha!

George said...

I posted this on a friend's Facebook page, but here goes:

If Instagram does this they'll lose far more money than they make, guaranteed. They'll end up plastering IP without a contract and people without model releases across the Internet and will be sued into oblivion.

George said...

"Have a meteorite fall on your house and think you might benefit somehow when someone tells you that museums and collectors pay up to $Millions if the size is right? Sorry. The government will come in and take it and won't give you a penny."

False. Falls on your land, your property. There is an issue about fossickers on BLM land that you may be confused about.

john said...

Fuck you Facebook. Fuck you Instagram. Fuck you Picasa. Fuck you all of you social networks.

If I want to host photos, I do it on my own server where I control them.

John Henry


John Henry was a bile driving man.

Bruce Hayden said...

Haven't read the new contract language, but did read the CNet article linked to by Ann: Instagram says it now has the right to sell your photos

It does open up a lot of fascinating legal issues. For one, if Instagram doesn't force its users to reaccept its new terms, are they bound by them? A lot of click wrap and shrink wrap licenses have provisions that the licensor can change terms at its own discretion, and its licensees will be bound to the new terms. This is very iffy, from a legal point of view.

Shrinkwrap licenses were highly questionable, because they so clearly constitute after supplied terms under UCC Article II. I think that it was Federal District Court Judge Easterbrook, or someone like that who gave them some legitimacy through the legal theory that "everyone is doing it". Still, Microsoft appears now to be putting language on their physical packaging stating that the license to use the software is explicitly subject to the terms and conditions found later, either in the package or when installing, etc.

With Click-wrap licenses, they try to avoid this by making potential licensees explicitly agree to the terms of their click-wrap licenses before their software is downloaded or enabled, or their service is made available. And, I think that this is much more viable than the shrinkwrap assertions.

But, when it comes to licensors changing the terms of their licenses after their licensees have accepted license terms, I think that they are on much shakier ground. These are, indeed, after supplied terms, and I think subject to UCC Article II limitations, regardless of the licensor's attempts to bootstrap them into validity.

This is, of course, all hypothetical, and Instagram may indeed allow its subscribers to ratify the new license terms, or delete their services, and if they do so, my previous point would be moot.

Methadras said...

Wow, it's all about money. SHOCKING!!! While the pleebs still want it for FREE!!!

MadisonMan said...

Bruce, thanks. It's only an academic question, because my photos are definitely not good, and she only takes them because they're of her and she's too lazy to scan.

jr565 said...

I do wonder how this will correlate with people who think they have the right to dowload free movies and music without the artists permission through bit torrent sites.
ARe these same people now getting mad that THEIR photos are not their photos?
I sure hope not.

Lem said...

The day of the Sandy Hook shooting, we were here discussing "The ten most overrated things in the world [SLIDESHOW]."

I dont quite know how to make the connection... sort of like how RLC felt after witnessing an incident at a party... but I do find it interesting (if not entertaining) that Althouse found Entertainment at the top of her list of he most overrated things in the world.

Instagram, facebook, smartphones, reality shows, easy credit affords us a perception fortiori, to quote Tom Stoppard, "We're actors - we're the opposite of people."

Ann Hathaway... WikiLeaks... the appification of entertainment.

jr565 said...

Now this just shows you the stupidity of the internet.

Under the new policy, Facebook claims the perpetual right to license all public Instagram photos to companies or any other organization, including for advertising purposes, which would effectively transform the Web site into the world's largest stock photo agency.
They can monetize this work without getting approval from the artist/photographer who took the work.
But you could easily download copies of the work, or get it through bit torrent then send out links to the self same pictures through a pirate bay and skip paying Instagram anything.
And the hosting company will get rich through hosting this self same material.
I'm wondering who in fact I should have pity for. Those who created the work, or the companies using the work for their benefit by charging for the pictures. Or the companies ignoring the monetized efforts and in effect giving away other companies digital property without paying them a red cent, but still getting rich off the deal.
Saying digital stuff should be free, kind of makes the whole copyright argument moot.
As it went with movies and tv shows and music, so too shall it go with photos and books and your personal data (like your credit cards). And why not, it's all digital 0s and 1s. If you have no problem stealing music and media,
then you have no right to be outraged that your stuff was taken from the cloud.

Bruce Hayden said...

Bruce, thanks. It's only an academic question, because my photos are definitely not good, and she only takes them because they're of her and she's too lazy to scan.

No problem - I answered accordingly. This is the sort of factoids that I miss from my stint in law school.

Craig Landon said...

As long as they don't use my pic in a Chevy commercial...

Chip Ahoy said...

The kids are uploading to Instagram because it's free and it works for sharing their pictures. They want to share their pictures. They're not concerned about monetizing their photography. They write programs and offer freeware.

Conversely they download music, shows and computer programs because it's free and it works and they want (you) to share. They are not concerned about (you) monetizing your material.

They give and take and expect that. It's the world they're in. It's the world that's coming. It's a much more commie world than the one we're used to operating in and informs our behavior. This last election showed me that's irreversible. A bit unsettling, I know, here, let's calm ourselves and have a piece of pie.

Chip Ahoy said...

Put glasses on a cat.

I'm the first person to think of that.

Mike said...

Delete my account (as the only way) to opt out. That's a hell of a business plan there, Instagram! If the EULA is as described here there will be mass-exodus.

joated said...

Apparently they feel the need to address this issue due to the outcry.

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

Ann Althouse said...

@chip Nice pie

Started out as a lemon tart
Then my phone went and made it art

Mike said...

http://news.cnet.com/8301-13578_3-57559710-38/instagram-says-it-now-has-the-right-to-sell-your-photos/

As of now they have backed down and publicly withdrawn the new user terms.

Brods said...

Was it poor language in the terms or are they back tracking following the out cry?

phx said...

I don't give a hoot about Facebook or Instagram. But I think it's interesting how the public loves downloading their free music and movies all over the internet but raises a hue and cry about "rights" when the corps want to take something back from them.

phx said...

And I know that's a generalization and doesn't fit everyone's profile.

Paddy O said...

Wouldn't this be akin to Google stating it owned all the writing content on blogger, including everything written on the Althouse site?

Bob Ellison said...

Professor, that CollegeHumor link was fantastic. Thanks.

Rabel said...

The Nickleback parody hits a little close to home.

Personally, I like other peoples' pictures of their houses and their yards and their dogs and their cheese curds.

purplepenquin said...

Have a meteorite fall on your house and think you might benefit somehow when someone tells you that museums and collectors pay up to $Millions if the size is right? Sorry. The government will come in and take it and won't give you a penny

In all fairness, they only do that if it is an alien space craft that crashed. When it is a regular ol' chunk of spacerock they let ya keep it.

damikesc said...

I wonder how they can make a valid claim that the actual taker of the picture agreed to allow them to use it. If I steal a pic and put it on Instagram, it'd be a stretch to argue that they have the right to publish a photo I didn't take.

Could make for some fun lawsuits.

Almost Ali said...

Correct if I'm wrong, but doesn't everyone know that Mark Zuckerberg is a weasel?

Ann Althouse said...

"Wouldn't this be akin to Google stating it owned all the writing content on blogger, including everything written on the Althouse site?"

No, they are not declaring that they own it. They are saying: Will you give us a license (with these terms)? If your answer is not, you've got to clear out.

Paddy O said...

Ah. That's helpful. Thanks for the clarification.

It's a tax.

Just kidding...

Derek Brown said...

So when Mamet meets with his rabbi who is the mark. I think this kind of cynicism precisely feeds these kind of actions. If everyone goes around thinking someone is the mark you better make sure you are getting your piece so you aren't the mark.

Darrell said...

When it is a regular ol' chunk of spacerock they let ya keep it.

Wrong again, PenQuin. Look it up. The BLM is asserting ownership and requiring pre-licensing. Some States have joined in on the fun. Meteorites have been confiscated. Whether any of this could stand up in court is a different matter. Most times the government assumes the the private citizen won't finance the expensive legal challenge. And they are right.

purplepenquin said...

Wrong again, PenQuin. Look it up.

*shrug*

An ol' buddy of mine owns a small meteorite and am simply repeating what was said when I first noticed it on his bookcase.

Could be we're both right on this one. The law would obviously say they are gonna seize all space debris ('cause they can't publicly admit they are only interested in the alien technology) but what really happens is they simply let folks keep 'em when it is just a rock.

lilibeth smith said...

My understanding is that, in general terms, the creator of the art work (e.g. the photographer) owns the intellectual property (copyright) of the work. When a photographer uses an art director, make-up artist, model etc etc, then there is generally a commercial arrangement that includes the acknowledgement that the IP rests with the photographer this can of course be varied by way of contract between the parties. The agreement concerning provision of associated services, such as art direction, would normally include the range of use of the photos.
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