I’ve been hearing all this hubbub around the new Instagram policy change. People are up-in-arms thinking that Instagram is going to sell your photo or sell ads around your photo. Honestly, I think everyone is overreacting. It’s really not that bad. From the perspective of a law school student, I wanted to take a look at the new Instagram policy change for myself.
Instagram & The Copyright Act
The Copyright Act outlines our rights to our work in 17 U.S.C. § 106. More specifically, we have the right to do, authorize (and prevent others from) copying, distributing, displaying publicly, performing publicly, and creating derivative works of our copyrighted material. Any time we create something “original” in some sort of fixed, tangible medium (i.e. writing, photography, etc.) we automatically gain copyright in that work. This includes digital works too, which includes any picture we upload to Instagram (so long as you were the one that actually took the picture).
Instagram even tells you that they don’t own your photos. In the first paragraph in their “Rights” section, it reads:
Instagram does not claim ownership of any Content that you post on or through the Service.
They go on to say that they only reserve rights to use your photos so that way they can provide their service to you and to those who can view your profile, which they talk about more in their privacy section.
Instagram Advertising & Your Privacy Rights
The paragraph everyone’s been going crazy about in the new Instagram policy change is the one that immediately follows, and it reads:
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. If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata)) on your behalf.
Let’s break that down.
Some or all of the Service may be supported by advertising revenue.
This is Facebook’s standard method of operation: sell advertisements.
To help us deliver interesting paid or sponsored content or promotions…
This is the big limiting factor that everyone seems to be skipping over when they’re talking about Instagram. The rest of this paragraph is limited by their paid or sponsored content or promotions that you often see on Facebook.
…you agree that a business or other entity may pay us…
It still sounds like advertising, doesn’t it?
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…
Here, they are telling you that you are giving them the right to publicly display and distribute your copyrighted material. This also includes your likeness and personal information. So, instead of just having the right to make copies and distribute for the purpose of providing their service to you, they are telling you that they also have the right to use your information in advertisements. What does this actually mean? Not much.
How Instagram Can Use Your Photos
Have you ever visited the Instagram website? If you haven’t you should. They have a display of smartphones with a stream of real pictures that display users’ names and locations. This is one way that they want to use your pictures.
Does this mean that they can sell your picture to a brand like MethodShop? And then we can slap our logo on it and use it in our own private advertisement? No. That would be a derivative work, and you haven’t given your rights up for that.
Can MethodShop pay Instagram for advertisements on its parent company Facebook and pick your Instagram picture to display next to our advertisement? Yeah, probably.
Can a local business (let’s pretend it’s MethodShop again) use an Instagram picture you took nearby their storefront (or even of their storefront), say “Jon Accarrino likes Methodshop” underneath your Instagram picture? Yeah, probably.
So, your Instagram of your morning latte can turn into a Starbucks advertisement, but you still own the picture.
…without any compensation to you.
Why pay for the cow when you can get the milk for free? In a reaction to all the outrage today, Instagram just published a blog post clarifying its stance.
If you’re still feeling down about Instagram, here’s a funny video to cheer you up: