Instagram: Some thoughts about when free isn’t really free

UPDATED: Instagram tonight announced they would revert back to their previous Terms of Service from October 2010. More details at the end of the original blog post.

When Facebook purchased Instagram recently for $1 billion three months ago, I wondered how soon they would roll out a new Terms of Service (TOS) agreement that would ruffle the feathers of that community. Last Friday, that day arrived.

“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.”

My last Instagram photo?

My last Instagram photo?

There have been a lot of articles online about photographers, both pro and amateurs cancelling their accounts, and the inevitable clarification and backtracking by Instagram. Trust is a tricky thing, however, and it will be interesting to see how this develops before January 16th, which is the date Instagram’s new TOS is scheduled to go into effect. Some people have said that the new TOS is Instagram’s suicide note. Unless everyone cancels, with this new agreement, Instagram suddenly becomes the worlds largest stock photo company, without the pesky problem of having to pay photographers for their work.

Many professional photography organizations responded today with a joint news release, posted on the ASMP website (American Society of Media Photographers, of which I am a member), expressing great concern over Instagram’s new policies and how they would affect the usage rights of anyone who posts photos on Instagram after January 15th. The organizations include the PPA (Professional Photographers of America), NPPA (National Press Photographers Association), PACA (Picture Archive Council of America), APA (American Photographic Artists) and GAG (Graphic Artists Guild).

In simple language, if you were unaware of Instagram’s new TOS that is set to go into effect on January 16th, any photo you upload to Instagram after that date, gives them unlimited permission to do whatever they want with your photos and the location and user metadata attached to that photo! You still own the copyright, but you grant them unlimited usage rights to display, sell, sub-license, use for advertising… pretty much anything they can think of that could make them money. And they don’t have to pay you for your photos. The only way to avoid granting them such a license is to completely delete your Instagram account.

That’s a pretty severe license grab, but even worse, it also means that anyone who happens to be in your photos that may be sold or displayed or used in advertising that they may not approve of, cannot take any legal action against Instagram. The new TOS specifically gives Instagram a pass on any legal action against them. You however, you can have legal action taken against you for using someones likeness without first getting a release.

“…(ii) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service;…”

You snap an Instagram photo of a friend of yours at a party, Instagram does something with the image that your friend doesn’t like, and you’re responsible, not Instagram. Most of us post photos to social media without first getting model or talent releases. It wouldn’t make sense to be balancing a stack of releases in one hand with your cocktail in the other at every party you happen to take a photo at. That would be silly. However, if Instagram used a photo of yours in a commercial manner, representing a brand or product, your friend may actually have some legal ground to be considered. And it would all be on you, not Instagram.

How ’bout them apples?

So there are a couple of issues to consider here. First, as I’ve said many times here before, free social media is never really free. “You’re not Facebook’s customer, you’re their inventory.” Same with Gmail, Twitter, Pinterest and Instagram. When we click on the Accept button, we agree to allow our data to be used in a variety of ways in exchange for free use of the service. That’s why, even though it’s a pain to read all the fine print, sometimes it’s important to do just that.

All of these companies exist to make money. They’re not just being nice. The current social model is usually to create a community through an app or website, not charge users to interact on it, and after it takes off, figure out how to make money on it. You can see the daily frustration of companies trying to balance how not to annoy user base against making money for people who invested millions to get it up and running. It’s nothing short of tightrope walking over an active volcano. Facebook this week said it was floating the idea of introducing automatically playing video ads in your timeline, and the push-back is already ramping up against it. They haven’t said whether or not you’ll be able to mute the sound.

The second issue is that of self promotion and what that is worth to you. There are stories of photographers being discovered after posting their photos on Instagram. Perhaps for them, giving away the rights to a few iPhone photos is worth the positive career trajectory that has resulted. Some photographers have cultivated thousands of fans that will follow their work elsewhere. That’s also positive.

The bottom line is that it will be up to each individual Instagram user whether it’s worth it to enter into an agreement with that or any other social media service. A lot of people will say, no, and cancel their accounts. Many more will say they’re going to cancel their accounts and won’t. Probably many more won’t care. In a world where people are used to “everything is free online,” be it music, or movies or photos or whatever, it’s been interesting as professional photographers to witness the light bulb go on over the heads of non-professional or more casual photographers.

“Hey! Wait a minute! Those are my photographs!”

Oh, hello again Flickr!

Oh, hello again Flickr!

Now you know how we feel when we see our photos used on other sites without our permission. Very interesting.

So now what? Well, it remains to be seen what Instagram will finally do about their new TOS. Perhaps they’re waiting to see how many people actually delete their accounts. I’m sure there is a room somewhere with a team of Instagram lawyers in it, trying to sort through the backlash. Probably not a lot of laughing going on in that room right now.

There are alternatives. Remember a year and a half ago when TwitPic did a similar thing with their TOS and many people, including myself, cancelled their TwitPic accounts and moved to the much more artist friendly MobyPicture? Yeah, I barely do too. But a similar thing is happening with the Instagram outrage.

Remember Flickr? I actually had to look up my password on my Flickr account, but yes, Flickr also has a much more artist friendly TOS. And they just updated their iPhone app to be very Instagram-like… but without the license rights grab. Great timing for them. Brilliant even. I’ve read a lot of articles in the past few days about the stampede by pro photographers from Instagram back to good ol’ Flickr. Flickr’s business model is free for a basic account, but they also offer a Pro account for $25 a year which includes unlimited photo uploads, storage, bandwidth and HD video, among other enhancements. Both the free and pro accounts offer your choice of copyright protection and usage rights management.

Flickr may have picked up Instagram’s fumble without even realizing it. Who knew?

And now the UPDATE mentioned above.

On the Instagram blog tonight, Kevin Systrom, co-founder of Instagram said the company was going to shelve the proposed TOS change, original scheduled for next month.

“Earlier this week, we introduced a set of updates to our privacy policy and terms of service to help our users better understand our service. In the days since, it became clear that we failed to fulfill what I consider one of our most important responsibilities – to communicate our intentions clearly. I am sorry for that, and I am focused on making it right.

The concerns we heard about from you the most focused on advertising, and what our changes might mean for you and your photos. There was confusion and real concern about what our possible advertising products could look like and how they would work.

Because of the feedback we have heard from you, we are reverting this advertising section to the original version that has been in effect since we launched the service in October 2010. You can see the updated terms here.

Going forward, rather than obtain permission from you to introduce possible advertising products we have not yet developed, we are going to take the time to complete our plans, and then come back to our users and explain how we would like for our advertising business to work.”

So. Does this make it all better? Everything back to normal? Personally I’m skeptical. Instagram really just smells a lot like Facebook now, where you have to keep an eye on everything when they announce a new “feature.” Which I guess makes sense because Instagram is Facebook now.

Me? I think I’m going to head back over to Flickr, regardless of tonight’s Instagram announcement. It just feels better over there.

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5 thoughts

  1. Nicely written. I’m not a professional, but I really enjoy using Instagram to follow some amazing photographers. I can’t image any career photographer would continue to use the service with these ToS. I don’t mind my photos being out there. I don’t even mind them being shared, but the idea of them being included in a paid advertisement to promote a service or product and I have absolutely no say in the content is not appealing to me.

  2. Hey there Paul! Thanks for the comment. Yes, I don’t know of too many pro photographers who will agree to the new TOS as it stands, even with the loss of huge communities they have cultivated through Instagram.

    However, if I had to bet, I’d guess that most Instagram users will probably yawn and upload another sunset. It will be interesting to see what happens next month.

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