It seems that Instagram put up some new rules due to go into effect next month that give them the right to sell the use of any photo on the site to corporations to use in advertisement on the site. ASMP and APA put out notices decrying the issue and pretty much got the whole issue wrong!
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 the exact same freakout last week, or a year ago, or the day Instagram launched.
The new terms actually make things clearer and — importantly — more limited. That “on, about, or in conjunction” with language is dead and gone. Now you’re only agreeing that someone else can pay Instagram to display your photos and other information only in connection with paid or sponsored content. These phrases have very specific meanings — Instagram can’t sell your photos to anyone, for example. It simply doesn’t have permission. And Budweiser isn’t allowed to 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.
So what can Instagram do? Well, an advertiser can pay Instagram to display your photos in a way that doesn’t create anything new — so Budweiser can put up a box in the timeline that says “our favorite Instagram photos of this bar!” and put user photos in there, but it can’t take those photos and modify them, or combine them with other content to create a new thing. Putting a logo on your photo would definitely break the rules. But putting a logo somewhere near your photos? That would probably be okay.
This is exactly what Facebook has been doing all along- advertisers can pay to “sponsor” your posts in various categories to make sure they prominently appear in your friends’ News Feeds.
The real question is “Why is ASMP wasting its time trying to police a section of the web that no photographer in his or her right mind would ever post their photos to?? Photographers that post intellectual property to any web based social media site are fools anyway!!!
By the way, there was so much negative talk about the instagram situation that they backed off the next day on the language, or at least said they will.