Photographers Upset By Instagram’s Change in Terms of Service

Update: Instagram just posted a blog post clarifying their intentions with their new TOS. More specifically it sounds as if they are going to be changing the wording on the controversial portion of their new TOS and strengthening your ownership rights over your photos. Seems like all the backlash was enough to make them back pedal on this one.

From Kevin Systrom:

“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. Our main goal is to avoid things likes advertising banners you see in other apps that would hurt the Instagram user experience. Instead, we want to create meaningful ways to help you discover new and interesting accounts and content while building a self-sustaining business at the same time.

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.”

Earlier today Instagram announced that they are changing their Terms of Service effective January 13th 2013.

The most controversial part of the change is outlined below:

“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.”

Now I have no idea if Instagram actually plans on selling/licensing your photos or not — sometimes the lawyers get a hold of things like this and push the envelope too far with a TOS — but this change seems to go further to me than the typical giving up of rights to your photos for typical social media display purposes.

Facebook’s TOS by contrast reads:

“For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.”

While this appears functionally similar to Instagram’s, Facebook doesn’t actually mention so specifically the idea of selling your content and you getting zero compensation.

Google+’s TOS tends to provide photographers greater protection with a provision that your content there can be used for the “limited purpose of operating, promoting and improving our services, and to develop new ones.” Nothing about selling off your photos to third parties there, folks.

“When you upload or otherwise submit content to our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones.”

Flickr takes it even one step further actually dedicating a specific blog post to this issue last year titled “At Flickr Your Photos are Always Yours.

This change today has upset a lot of photographers and content creators. The New York Times takes apart the new TOS here. Blogger Robert Wagner puts his view more succinctly in a blog post titled Goodbye Instagram and f*** you.

Personally speaking, I trust that Google will not sell my photos out from underneath me. I think their TOS is pretty clear about their limited scope of use. I applaud Flickr for taking it one step further with a blog post spelling out that you always own your photos on Flickr. Interestingly enough, even before this announcement I saw my first “I’m leaving you Instagram for Flickr” post this past weekend.

Wired has a post that shows you how to take your photos off of Instagram and delete your account.

Gizmodo seems to take a different view of this situation, calling folks concerned with today’s announcement whiny little babies.

What are your thoughts? Will you continue to use Instagram? Are photographers overreacting here?

My own view is that I think Instagram is pushing it a little too far with this one. I think I’d rather pay them a subscription fee like I pay Flickr than have them out there selling my photos.

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  1. J Rae says:

    Hey TH
    This is a great write-up. Thanks for posting it. I’ve never had Instagram, but I do use Facebook, and it is my understanding that their TOS still does not trump copyright law. So my advice to photographers who are really concerned about image theft is to register with the US Copyright Office.

  2. Tom – this makes for good blog material..but really do you think IG is gonna do anything stupid and screw up what they have built? My guess is this was an over zealous lawyer who wrote this…..

    I guess we will see what happens – but I’ll predict here the team at IG and FB figure out a way to monetize without jeopardizing what they have built… They are pretty smart and I don’t think they will fuck it up…

  3. Thomas Hawk says:

    Sean, I don’t know. I guess I’d tend to agree with you regarding Facebook’s TOS which is why it’s never really bothered me. I suppose I always took the view that there is no way Facebook would create a firestorm by actually trying to sell people’s photos without giving them a cut.

    Instagram’s change though seems much more leading than Facebooks in that it specifically mentions them getting paid and photographers getting zero compensation. This could just be overzealous lawyering and I mention that possibility in the article. But it could also be part of a plan to do exactly just that. What if Instagram could show Coca Cola, for example, all of the best viral Instagram photos that have their logo in them or reflect positively on their brand and then Coca Cola could use that image in marketing on Facebook if they paid Facebook a fee.

    Personally speaking, I’m not opposed to such a scheme, I’m suppose I more take issue with the original photographers cut of 0%. I guess I’d rather see Instagram say that if your photos are used in such a manner we will share potential revenue with you. Even if it was 80% Instagram 20% photographer, this sits better with me than 100% Instagram 0% photographer.

    I suppose time will tell.

  4. Thomas Hawk says:

    J Rae, technically Facebook’s agreement does trump copyright law. More specifically you are giving them a license to your content that is transferable. Theoretically if they wanted too they would be within copyright law to both sell your content and allow others to sell your content as well and keep 100% of the money. It would surprise me if Facebook ever did that, but today’s new language from Instagram certainly is a lot closer to this sort of a possibility.

  5. Thanks for great post and the links. I saw one of the articles today on Twitter. I’m not happy with the terms as I’ve been on Instagram since the beginning and have enjoyed it. But with these terms, I will probably leave if they don’t change it.

  6. Ed Devereaux says:

    I feel so vindicated about my refusal to use Istagram.

  7. Gregory says:

    I just nuked my Instagram account. There is one photo left, and it is a photo of Wired’s article. While I’m sure that the service will “clarify it’s new ToS” I simply cannot accept the notion that my photos will be used to make someone else profit without even a scrap coming my way, or any of my input. My photos are now back at Flickr for the time being.

  8. DennisG says:

    Thanks for the summary of most of the links about this, and as always a good perspective. A couple of weeks I already decided to move away from Instagram for sharing the people I most care about; my kids.

    I don’t foresee Instagram (AKA Facebook) starting to use my kids in one of their ads, as they just settled a lawsuit for $20M over this.

    What is more important, and often overlooked, is the ease of access and duplication of your Instagram pictures on your web profile.
    I wrote a long story what happened with the pictures of our daughter a couple of years ago. You can find it here:

  9. Eric says:

    I’ll wait to see if they de-lawyer it before next month. Otherwise it crosses the line for me so I’ll stop using them.

  10. Eric Nelson says:

    Hi Thomas,

    Great write up as usual…and while I tend to see most of the TOS issues as irrelevant, this one could be a game changer. I use Instagram for personal use and could care less if they use my images. That said, it is a slippery slope and once one starts doing this, it may lead to more. In addition, those who have never been paid for their work are likely to see the use of their images as a good thing.

    I am keeping my eye on this for now to see how it develops…

    Thanks for your thoughts.


  11. Michael says:

    The first person to see an image of themselves promoting a product or service and gets to a lawyer will have a nice sum of money. No release big settlement.

  12. Brett says:

    I agree that I think they’re pushing a little too far on this one. I think we’ll see a change to the TOS or a lot of people choosing to use another service.

  13. Melody Migas says:

    I just can’t seem to get into Instagram. So this gives me a good reason to stop bothering with Instagram.

    It’s kind of lame anyway. I’ve always liked the Explore thing at Flickr. Similar exploring can be done at G+ and 500px. If I wonder away from the people I know at Instagram to explore the unknown peoples’ photos, I end up just seeing poses & food.

  14. Clearlight says:

    It’s not even about the money or lack thereof. It’s about the continuing devaluation of photography in general. Like the multi-million dollar restaurant corporation that wanted to trade two dinners for a perpetual license on an image. To even suggest that they can sell your image for commercial purposes and not compensate is the height of arrogance.

  15. I remember we were all waiting for something like this to happen when Facebook bought them. Sure, the language might get tweaked, but that won’t make me trust them. They are Facebook now, unfortunately.

    Something else I’ve been thinking… if you wanted to start controversy and drum up publicity for Instagram, this probably would do the trick. I think Facebook has learned over the years that people get outraged and then they calm down and accept it, especially when they go too far and then backtrack a little. Bad publicity is good publicity? Who knows.

  16. Great post Thomas, thanks for sharing your thoughts on that topic. I’m personally really disappointed by Instagram and this move. Being quite active user for a past few months now I’m really considering posting my mobile photos to Google+ and switching to snapseed or something.

  17. lighttrapper says:

    Perhaps we could start a movement to ask all users to remove their photos from Instagram and replace them with F U Instagram images. Keep the accounts, just fill them with unusable garbage. They will carry the burden of storing all those images, none of which can be leveraged by them. Wouldn’t take long for them to change the TOS, and you’d get to keep your cherished account name.

  18. alebaffa says:

    Very bad idea from Instagram, in my opinion. I’ve just deleted my personal account. I am not agree with you, I’ll never pay to have an account on Instagram, considering the huge amount of free similar (or better) applications for the photos.
    I will go for Google+ with Snapseed from now on.

  19. Ian Mears says:

    Whilst the language is slightly different Facebook have exactly the same right to sell your images and not pass anything on to you (thats the sub license bit). The Instagram terms just happen to make this a little more explicitly clear.

    Some people have called it a suicide note but in reality the vast majority of people will just not care (photographers probably being the main exception). Many would probably be over the moon if one of their pictures was published somewhere.

    Based on the quality of many Instagram photo’s I would guess they are more likely to only be sold for online use rather than print. That usually pays next to nothing anyway so from a realistic point of view it isn’t going to make a great deal of difference in the scheme of things.

  20. jessepf says:

    Tom you make several good points, but what about coca-colas original copyright to their own product that someone tool a photo of without a release form? maybe coke should have a right to such things? I never thought about it like that until I read your scenario… also, what about model release and property release forms? until they state that a user must have these things before they can post a photo (that would really give them true legal rights) then I don’t think they can just sell someone’s work. sure they can sell the data behind it all and the trending info and such… or in the case you explain… coke may have legal rights to such an image anyway, but until then I think it’s just lawyering and will be updated again, if for no other reason than all the chatter today. many thanks again though, I agree with you completely that we should a be aware and concerned, but te Internet is the new Wild West it would seem.

  21. You saw the update today right?

  22. just saw your update above 🙂

  23. catklein says:

    Whiny little babies? Really? Wow.

    I love Instagram and am not leaving yet. I have friends there that I love and all my shots are with my cell phone. Yeah, I don’t want them being sold, but am doubting that will happen.

    I save all my favorites for Flickr where I have been for six years as of yesterday and never been dissapointed. I know they have our best interest at heart and my photos are selling there thanks to Getty so I am appreciative.

    I would LOVE to know how many people deleted their Instagram accounts yesterday. They blew that one big time. But I still love that app, dammit.

  24. Thomas Hawk says:

    And I love favoriting your photos on Flickr too Cat. 🙂

  25. Matt says:

    Glad to hear they are back pedaling, though I think the damage has been done. Nobody trusts FB (rightfully so) and it’s just a matter of time until they completely ruin IG.

  26. catklein says:

    Likewise, Thomas : )

  27. Robb Kings says:

    TH I am held in wonder of all the artists giving from the power of their heart lifts me in the sunshine to continue my path to my art of personal expression. I strive to survive and give back to a life of Art and luv


  28. Lollpop says:

    You’ve got a great blog here well done congratulations

  29. KJP Images says:

    Great blog post, it’s a shame the damage has been done as Instagram is a great little app.