regarding instagram’s new TOS

So Instagram is now going to use photos taken by its users in advertising, and they may or may not disclose to viewers when the advertising is happening.

I have no idea how this will actually work, and I’m once again glad that I don’t use Instagram … but I know a lot of people who do, and many of those people are celebrities to some degree.

Here’s what I’m wondering: if Kaley Cuoco uses Instagram to share a photo of her and Melissa Rauch doing something silly, does that mean that Instagram can take that photo and use it to advertise for something silly without compensating them for what becomes a use of their likeness for commercial purposes? I can see that being a pretty serious shitstorm if it happens. I’m not a big enough celebrity for it to personally affect me, but I know a lot of people who are. If someone Instagrams a photo of Seth Green walking through an Urban Outfitters, does that mean Urban Outfitters can take that image and use it to create an implied endorsement by Seth? What if the picture is taken by a complete stranger? Who gets final say in how the image is used? The subject, the photographer, or Instagram?

This sort of dovetails with similar concern I have about the automatic opt-in nature of much of our digital life: if I’m in someone’s address book, and they use an app that grants the developer full, unfettered access to their address book, I’ve now had my information given without my consultation or consent to a developer who I know nothing about, and I never even knew it was happening.

Just as we have a “do not track” option for our webbrowsing habits, we’re going to need to have something similar for other aspects of our increasingly-digital lives: from contact information to our location to moving and still images of ourselves. Because it’s no longer enough for me to be careful with my opt-ins and online sharing; now I have to ensure that every single person around me is careful and respectful of my privacy wishes, as well.

54 thoughts on “regarding instagram’s new TOS”

  1. I agree, it stinks. But Twitter’s TOS are identically poor, too:

    You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

    1. Twitter locks it down with their Developer Rules of the Road, though, with passages like this:

      Using Twitter Content. Get the users’ permission before:
      using their content on a commercial durable good or product (for example, using a Tweet on a t-shirt or a poster or making a book based on someone’s Tweets);
      creating an advertisement that implies the sponsorship or endorsement on behalf of the user; or
      using content in a manner that is inconsistent with the Display Requirements and would require the user’s permission under applicable law, including without limitation uses of Twitter Content that features the name, likeness, or identifying persona of a person.

      It seems like Instagram is rewriting its TOS to give itself and its partners free reign to do what Twitter is consciously regulating here.

    2. No, the Twitter terms ARE different. Twitter’s terms say your tweets can be used by Twitter and those who provide access to Twitter (“apps”) to say “look what people are saying on Twitter.” It does not say that advertisers on Twitter can use your tweets for advertising their (non-Twitter-related) product (in any context)….big differences.

  2. I’m a little paranoid on this thought. This might be a teaser to what FB will offer in the future as a TOS and they are just using a bought company to see if anyone or a percentage of people catches it before agreeing. They know people don’t read the TOS.

  3. I’ve been quite cautious who I give my data for as long as I can remember. 20 years ago there were about 13 web servers online. At time there was no need to be careful about giving out email addresses or user ids. Now everything is inter-linked and you are only as safe as the weakest link. Only one of your receipients has to have a crappy Win box with one of the million viruses available for that awesome platform and you are screwed.

  4. This is pretty interesting about illegal tracking and sharing of information. Financial Institutions have to follow a set of laws known as the GLB to make sure their customers have plenty of privacy. I am pretty sure that Instagram or any other app or device has to follow by the same rules of regulations when pertaining to their customer’s privacy.

  5. Ah peoples, if you use Facebook this is already happening. You do not own the photos you post on Facebook and never have. Good reason not to use Facebook.

  6. And what if you are an actor or model and currently working as a sponsor for a brand, and Instagram uses your image for a competitor. You would unknowingly be forced to break the rules against such things. Your job, your contract could be put at risk. You could be in trouble with SAG or the like.

  7. The new changes are quite alarming. While I’ve been using Instagram to chronicle many of my travels, I’m contemplating deleting my account.

    Let’s take a look at your two scenarios:

    1) “if Kaley Cuoco uses Instagram to share a photo of her and Melissa Rauch doing something silly, does that mean that Instagram can take that photo and use it to advertise for something silly without compensating them for what becomes a use of their likeness for commercial purposes?”

    Under the new TOS, Kaley Cuoco would have previously agreed to let the photo be used for commercial purposes without compensation as soon as the TOS was agreed to. Instagram and the 3rd party are in the clear on face value. I’m sure it could still be challenged, as many users aren’t adequately informed of the ramifications of such a radical change.

    2) If someone Instagrams a photo of Seth Green walking through an Urban Outfitters, does that mean Urban Outfitters can take that image and use it to create an implied endorsement by Seth?

    While Urban Outfitters could use the image under the new TOS, since the picture wasn’t taken by Mr. Green it could be argued that he still has image rights to how his celebrity status is marketed. I would suspect that the possibility of a legal fight over such image rights would deter them.

    BTW – You are a big enough celebrity that it might affect you. I can think of some gaming resellers that might want to snap up a few picture of you playing Table Top games at cons to use in marketing, even if it is done in a local store. Imagine walking in a store and seeing a poster of yourself playing Ticket To Ride with the caption “A great holiday gift!”

  8. I think the subjects of photos are mostly safe, as subjects aren’t the ones agreeing to Instagram’s TOS.

    To use your example, if a fan were to see Seth Green in Urban Outfitters and take a snapshot, they couldn’t use it because he never gave consent. If he was in Urban Outfitters and took a picture of himself trying on a silly hat or something like that, and uploaded it to Instagram, that’s where it might get tricky, because he did indeed agree to their TOS.

    The address book example is a far more pressing concern. If you have an unlisted number, you *might* have some recourse, because I think there are laws governing the electronic distribution of unlisted numbers. Some states also have statutory laws that supersede any contracts someone might sign. Just for example, no employer in the state of California has the legal right to enforce a non-compete clause in an employment contract; it’s null and void, even if you willingly sign it. So even if developers get someone to agree to TOS that lets them share phone numbers, it doesn’t necessarily mean either the person agreeing to the TOS or the developer has the legal right to exchange those numbers.

    And now that so many minors have their own phone numbers, I can see a lot of legal ramifications for this kind of sharing. If a person gives out the rights to the numbers in their phone’s contact list, and one of those belongs to their 10 year old niece, aren’t both parties violating the Children’s Online Privacy Protection Act?

  9. A lot of sites that feature user-generated content have similar TOS, including several niche social networking sites I helped develop. In those cases, though, it was more to protect the site operators. One example is we had a feature called “Cool Ride of the Week” where we highlighted a member’s car each week that we thought was “cool.” The TOS allowed us to create a banner ad used on our site to promote the feature, and we could use some of the photos of various members’ car on the banner without getting sued. Similarly, it protected us if we decided to included a screenshot of the front page of the site in, say, a print magazine ad. The screenshot would of course show some images that users uploaded to the site. Or if we ran a contest with a brand, and they promoted the contest, they might include a screenshot of the site in their promotion, which again would feature some images uploaded by the community.

    Of course I have no idea if that is the type of thing Instagram has in mind with this, or if they will be using them for implied endorsements like you mention (which I do NOT think is acceptable to do) but you’d be surprised at how many sites have this type of TOS.

  10. While I don’t want to defend a corporation whose product I don’t use, I’m pretty sure that the advertising clause means that if Instagram decides to advertise for itself, they may use real users’ photos in said advert, rather than those excruciatingly fake stock photos. I do not think that it means they intend to sell user photos to third-party advertisers for just any kind of product.

    I am quite sure that I have seen similar clauses in the TOS of other image hosting services on the web.

  11. the good? news is I’m pretty sure this will violate Canadian privacy laws. Facebook has gotten into enough trouble with the Canadian government with some of their “changes” so I’m sure Instagram will be shot down in due time.

  12. There’s an interesting clause I’ve come across in NASA’s terms for using their images and content. Technically it’s all in the public domain since they’re part of the US government, but,

    If a NASA image includes an identifiable person, using the image for commercial purposes may infringe that person’s right of privacy or publicity, and permission should be obtained from the person.

    (From nasa.gov/audience/formedia/features/MP_Photo_Guidelines.html.)

  13. Also happy I’ve never used it.

    Wil, you bring up an interesting point from a celebrity stand point that I never thought of. As i’m sure you’re aware, model releases are normally required for any sort of photography that may be reproduced for $$, except, of course, if you’re a celebrity. Then the public somehow “owns” the rights to your image more than you do, since they’re the ones who’ve given out the status of celebrity, it’s something I’ve never understood. (Especially since “celebrity” can be so ambiguous, how does one define such a status?)

    So while Instagram’s new policy is concerning enough for the little man, I’m not certain it means much to the bigger names out there, so I think you have more cause to worry than, say, Seth Green.

  14. That’s exhausting. I try really hard not to let all kinds of crap get access to my privacy. I’ve not used instagram. What a pain in the ass.
    In other news… why are all the links you used to have up top gone? Radio free burrito? Twitter? G+? The other ones?

  15. I wonder why the copyright law has not been extended now to include the rights of all content created by an individual; except it has and ever was. I try to imagine a world where copyright law meant that the use of personal information required corporates to pay royalties to individuals everytime they sold on or marketed their data. Wouldnt it be awesome if from the day you were born to the day you checked out the law had provided you with the rights to your information from DNA , to Fingerprints to Name, Address and GPS. The govt wants to keep a DNA database, okay but it pays a royalty for that; the police take your finger prints and then want to keep them on record; sure but they pay a royalty unless you have been convicted of a crime. Marketing companies want to buy a list of email addresses and access a service; okay but everyone on that list gets a cut and a share of being part of the process. This is my data utopia

    one more thought; I tried to login as Loudmouthman or register but the name was taken on wilwdn so I used twitter to connect and the avatar I can see right now belongs to @tessus not to me I dont know if my avatar will be correct when I post but it points to the data already being screwed up enough to demonstrate that identity and data are more fragile than a first season script writer.

  16. Surely this has always been the case? If I took a photo of Seth Green walking through an Urban Outfitters with my normal every day camera because I saw him out and about, what was to stop me from selling that image to someone else to use for advertising? If I have your phone number and someone asks me for it, what is to stop me giving it to them?

    The issues are the same, the (admitedly huge) difference is merely the ease and simplicity with which things can be re-shared in bulk now. The problem is one of awareness. You are right, you do need to ensure everyone around you is aware of your privacy wishes, but that has always been the case if this is a thing you care about.

  17. I’m not a celebrity, but I understand how it feels when someone uses something of yours off of the internet to increase their earnings and you don’t get compensated for it. In the fall of 2001 while using a celebrity’s website, I naively gave his assistant an idea for the website. The assistant thanked me. Six months later, in 2002, my idea was implemented on the celebrity’s website. In 2012 my idea is still being used on his website, so it must be making good money. Meanwhile due to health issues I struggle to get by (cue violins).

    Maybe this is a big coincidence, but on a Fox.com message board (discussion board for Fox TV shows) several years ago, one of my board buddies and I made up a story and posted it. A few years later a film happened to come out (“original screenplay”) which had the same unique premise as our story and it grossed over $200,000,000 worldwide. Of course the moral is: Be careful what you share on the internet, everyone.

  18. It’s not as big a deal as you imagine. The subject of a photo retains their rights. This would really impact images without identifiable people in them. Commercial use of one’s image is still protected, and the photographer doesn’t own that image.

  19. Thought of a couple of potential solutions:
    1.) Stop posting your own pictures and fill your Instagram stream with pics of Mark Zuckerberg and (Instagram CEO) Kevin Systrom memed up to “promote” a variety of products. Can start as simple as “competing” products or can be taken as far as you like…I think a day-long “protest” where everyone did this would be cool.
    2.) Embed text on each of the pics you do upload saying things like “Powered by Flickr” or any other variety of non-endorsing statements….

  20. I would also say that, Me as an instagram user see Wil Wheaton in public and then I get my friend to do a stupid pic (where Mr. Wheaton doesn’t even know what is going on, kinda of like the movie Date Night). Does Instascam have the right to say OH WOW a stupid picture that has a semi-celebrity and we can post it as an advertisement? Is that fair to said almost famous actor? He – Mr. Wheaton had no idea the photo was taken and did not agree to post the image on Instagram…
    We also have to put into account that actors must have some kind of image clause in their contracts that strictly prohibit or limit any type of public exposure that may in any way form a public opinion that is contrary to the image that their talent agent or employer wishes to convey. I am sure Geek and Sundry does not want to have Mr. Wheaton publicly denounce nerdism or geekyness.
    BTW – I still have an iPhone 3g and cannot use instagram.

  21. I’m always surprised when people suddenly blow up about this stuff (and maybe more surprised when they don’t). These types of TOS are fairly standard practice now. Set in place by Google, Apple, MS, and (later) Twitter and Facebook. I have no idea why instagram (a fairly tiny player in the owning all your data game) adopting the same practices suddenly outrages people (beyond a fairly concerted campaign from Flickr to make sure you know about it).

    Here’s a good rule of thumb: If you upload something to someone else’s computer, and you’re not paying for the space on that computer, chances are you no longer own whatever you posted.

  22. Under TOS section 4 it lets the user know that because they acknowledge and consent to the use of their images and grant rights and licenses to instagram to use the images for commercial advertisement, that the owner of the image is assumed to have obtained proper consent from the individuals in the photos as per local state and federal copyright publicity and privacy laws. This is instagrams way around the privacy and consent question. Because you are technically still the owner of the images the legal responsibility to obtain consent from parties in your photo content lies with the user and the burden of consent is not on instagram or their affiliates to legally protect themselves from having to pay royalties or licensing fees. In fact lets say that photo of Seth Green at UO pops up in an advertisement, Seth green decides to sue urban outfitters, well urban outfitters wouldn’t be responsible because it purchased the image from instagram. Instagram wouldn’t be responsible because they just sublicensed the content from you and under their terms of use they made it clear that the user is assumed to have all legal consent from parties involved in the content in question. In effect you the user would be legally culpable for the content and you actually would be responsible for royalties copyright and licensing fees

    1. In that case, they’re trying to get around the “model release” necessity. It’s not going to work. This kind of boilerplate would get them successfully sued if they had an instagram of someone hugging George Clooney and they used it to advertise the brand shirt he was wearing.

      However, the user upset is more understandable, given that text. It is an attempt to go further than simply using your photo of a big mac to advertise big macs.

    2. Boca, that is not the wording. The wording indemnifies only against the uploader’s actions, (i.e. “your violation” and “your direct activities and those conducted on your behalf”) not the actions of Instagram. Taking a photo of Seth Green taken through his window is a violation of his privacy and Instagram expects you to indemnify them against any liability that seeped through a common carrier status. A photo of Seth Green taken in public or with his permission can be shared on the Internet as long as its not defamatory, the user needs no further authorization to upload to Instagram. The moment Instagram implies that Seth Green endorses a commercial product or service, *they* have committed the action at issue. There was no language in the indemnification that required the uploader to indemnify against unauthorized commercial use by Instagram on their own behalf.

  23. It is common practice to have licensed images use this terminology. The comment from Boca outlines that in the event they are to use the picture that you uploaded that you have the right to upload the image. Most people think that they can safely take a stock image, add some text to it and upload it to Facebook or Twitter. This is a wrong assumption and the user must have rights to do so as the author or artist dictates. So when some one tries to sue Twitter or Facebook for using an image they did not have the rights to then Facebook or Twitter can point the finger back to you and you are responsible for that image and how it got uploaded to the internet.
    I think the second thing here is that Instagram is saying the will use the image and therefore you will be liable for what you put on their site.

  24. At least here in Germany your likeness is protected. That’s why you usually have to ask persmissioin of ANYONE in ANY of your photos except if it is a picture of a gathering in a public place, e.g. a concert or another gathering with dozens to thoudsands of people.

    Which means that if one were to follow the law you’d have to delete maybe 50% of all the pictures uploaded to facebook here in Germany. The only way to get around it is to blur out faces.

    But let’s be honest, there are also copyright laws and I know you have a Tumblr Will. Most likely 50% of your Tumblr posts are infringing other people’s rights as well. I usually chuckle when I read posts by Harto or you about atttribution – that’s all nice and everything but you aren’t allowed to post these things in the first place you just copy off of other websites in fullquotes that aren’t really in a context of satire or editorial – at most you’d be allowed to post a link and a short (very short) quote.

    But let’s get back to the advertising issue: there has been precedent to this in the past. Magazines over here and most likely also in the US have used pictures of celebrities in advertising and usually the celebrity has to sue to get compensation.

    And that’s the bottom line – no matter what Instagram puts in their TOS, if they use your likeness you’d have to sue them no matter what to get compensation. The question here is more “does that mean they will do this because they changed their TOS” and the answer to that is: the more you talk about this like in this post and the more of a kerfuffle this will be on the net (e.g. “outrage! now!”) the less likely it will be.

    So telling your readers that it would be a good idea to delete their Instagram account today would be a nice start.

  25. Hi Will Wheaton!

    I couldn’t find a “contact me” or similar button on your page, so just commenting here.

    I just finished listening to the “Fuzzy Nation” audio book, and absolutely loved it. I’ve listened to over 150 and hands down you’re one of the best (I even teared up over parts of the book).

    Happy Christmas.

    Amber

  26. Um, PS that’s obviously a comment on your narration, not a disillusioned comment thinking that you wrote it :) I’m looking forward to hearing more of your work.

  27. I’ve a Flckr fan since day one, and I’m glad they stepped up to enhance and improve on their mobile app.

    I’ve only used Instagram once or twice, usually I end up using Flickr to upload photos. And I’ve always had a not-so-good vibe about Instagram, and makes perfect sense how they treat their users.

    But that’s a great point about celebrities using Instagram. And I’m sure professional photographers will think twice (hopefully) before using it.

  28. I’m just wondering if you have reviewed the revised Instagram TOS since they responded to users’ feedback. I have and am still none too pleased, but that direct language has been changed. However, IMHO, I think they just moved it around, but the bottom line ends up being the same. January 19th is still a few weeks away so…

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