TOS Exposed: My Instagram photos are FOR SALE At half what Instagram are offering!

by Christopher Kusek (PKGuild) Evangelist, Facebook, Social Media, Technology, Twitter

Aren’t you OUTRAGED by the change in Terms of Service by our good friends at Instagram and Facebook effective January 16th?  First, let’s look at the ‘changes’ in question.   These top 2 seem to be the charge of outrage by most news beat writers because they clearly got a buzz that this is what they’re supposed to talk about and be outraged at.

Proprietary Rights in Content on Instagram; Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the Instagram Services. By displaying or publishing ("posting") any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly ("private") will not be distributed outside the Instagram Services.

This is what everyone seems to be screaming about OMG INSTAGRAM SAYS THEY CAN SELL MY PHOTOS AND NOT EVEN NOTIFY ME ABOUT IT, IM NOT GETTING PAID FOR IT! After all of the whine and cheese has been appropriately distributed, and considering that some 1billion photos get posted every second, what are the odds that YOUR particular photo of a cat drinking water from the faucet was going to be SOLD by instagram in the first place? The odds, aren’t very likely, but I understand you’re outraged because they are selling something which you had no means of selling to start with, providing a vehicle to share with others on an extensive infrastructure, DAMNIT WTF WHY DIDN’T WE WRITE SOMETHING LIKE THIS OURSELVES! (Whew, glad I didn’t write this in 1999….. but I digress) But let’s focus on the real matter at hand here, okay? Those of you who are pissed off that your rights are being ‘trampled’ on weren’t long for the service in the first place.

Taking a look at the rest of the ‘rules’ in question…

You represent and warrant that: (i) you own the Content posted by you on or through the Instagram Services or otherwise have the right to grant the license set forth in this section, (ii) the posting and use of your Content on or through the Instagram Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, and (iii) the posting of your Content on the Site does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the Instagram Services. 

Okay, you’re saying THIS IS MINE AND IF IT’S COPYWRITTEN IT’S MY FAULT AND MY LIABILITY. Okay, that’s standard legalize way of saying “uh… it’s your fault if we screw up because we said don’t publish that stuff on our site anyway! Neener Neener – Instagram” Right?  So now when you take a photo of a coke can SIMILAR to that in which another company did for pay… you have to pay ROYALTIES on it, but not Instagram them self…. okay, that’s a CYA if I ever saw one…

The Instagram Services contain Content of Instagram ("Instagram Content"). Instagram Content is protected by copyright, trademark, patent, trade secret and other laws, and Instagram owns and retains all rights in the Instagram Content and the Instagram Services. Instagram hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the Instagram Content (excluding any software code) solely for your personal use in connection with viewing the Site and using the Instagram Services.

What isn’t clear here is what is defined as “Instagram Content” because by some of the other statements.. ALL content might be technically defined as “Instagram Content” but for the purpose of argument we’ll assume for a moment this does not equally include Content of Users– which brings us to the next point.    You may not copy/modify/display/sell any content “appearing” on the Instagram Services.   So, what is this saying?  If I took a photo myself, and shared a copy of it on Instagram that I no longer have right to my ORIGINAL SOURCE of content since it WAS shared on Instagram?   This has gotten to be some of the worst written legalize I’ve seen in some time, so either they want a blanket WE OWN YA’LL BITCHES to mean all content generated ever, or they really have no fricking idea how to write a legal document.   Either way, I stand forth, even reading into this content….

Feel free to use the content I generate and share on Twitter, Instagram and Facebook as a virtual ‘Gallery’ of my offerings, and you the general purpose world and community and welcome to Purchase under license to USE that content in a commercial context.    Though, as I addressed years ago, otherwise I’m open to a creative commons discussion for pretty much most any other purpose, and this ToS can go screw itself because it doesn’t have a gram to stand upon.   

If you find yourself fleeing the service, get over yourself if you’re that vain.    If you’re an artist and you feel your ‘property’ is going to be thieved by the man, then close the door on another opportunity to get your name and your work out there.   But if you’re an artist for the sake of art like myself who likes to stick it to the man, continuing producing content without fear of what ‘the man’ will do to us, because honestly… We are the content generators, the Service does not exist if not for us, and if they cannot ‘sell’ content to drive advertisers to pay them money, well, there’s no fricking infrastructure to run this on, so go back to your ‘paid’ services which no one will ever see your content on.

kthxbye.