Promotional Benefit Or Rights Grab?

There seems to be no shortage of commentary regarding the potential pitfalls associated with posting photographs on social media. Even discounting the more emotional aspects of the debate, there’s reasonable concern among photographers that posting images to social media will result in a loss of rights and/or control over such images.

One aspect of this debate has been fueled by the uncertainty associated with a lack of judicial interpretation of the terms of service governing various social-media services and websites. Yet another aspect of the debate has lamented the lack of control, and indeed, the lack of meaningful choice, that photographers have when faced with the dilemma of losing control over images or risking being left behind as others embrace social media.

Now, relatively recent events may reshape the debate over whether or not photographers should embrace social media, and whether doing so will result in the loss of control over images.

Strange Bedfellows

As the Great Bard observed in The Tempest, “[m]isery acquaints a man with strange bedfellows.” Shakespeare’s concept was refined in the 19th century by American writer and editor Charles Warner, who wrote that “politics makes strange bedfellows.” Now, it seems that the maxim applies equally to social media, and specifically, the photo-sharing service Instagram (, for it succeeded in uniting photographers and celebrities in protest.

Instagram made news in 2012 when Facebook announced that it had finished a deal to acquire the budding competitor for $1 billion. Claiming to have 90 million monthly active users, and handling 40 million photos per day, there seemed to be no limit as to how big the service could become. It didn’t hurt that Instagram was able to count among its users celebrities such as Oprah Winfrey, Lady Gaga, Usain Bolt and Lebron James, and a number of popular brands, including Major League Baseball, National Geographic, Louis Vuitton, The Wall Street Journal, Sports Illustrated and The Ellen Show. As the end of 2012 approached, Instagram appeared unstoppable.

In December 2012, Instagram made news again; however, this time, the catalyst was Instagram’s announcement that it was revising the contract terms governing the use of its photo-sharing service. The new terms—a bloated collection of legalese swelling from the roughly 1,300 words in the old terms to over 5,000 words—represented a significant change that included something to offend just about everyone.

One of the more controversial changes related to the manner in which Instagram intended to generate revenue: through the use of its users’ images. Specifically, the new terms described how Instagram intended to generate revenue: “Some or all of the [Instagram] Service may be supported by advertising revenue. To help us deliver interesting or 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.” While photographers have complained about the overreaching terms utilized by some social-media websites, this language was sufficiently blunt that it caused many celebrities and media organizations to take notice, as well.

Following the announcement, Twitter was ablaze with messages from celebrities voicing their opinions of Instagram’s new terms. Anderson Cooper complained about the new terms and asked for recommendations for similar apps. Other celebrities tweeted that they were going to, or had, deleted their Instagram accounts. In this vein, Mia Farrow tweeted “[t]rust me, deleting your Instagram account is satisfying.” Actress Nia Vardalos, of My Big Fat Greek Wedding fame, tweeted “[y]ep, just deleted my [Instagram] account,” and questioned whether this was the beginning of the Instagram backlash. Pop singer P!nk tweeted, “I will be quitting Instagram today…. You should read their new rules.” Actor Seth Green explained that “[a]rt I share for free isn’t theirs to sell….” Lebron James summed up the mood: “So [I] hear [Instagram] will start selling photos that posted for their own profit. Is this correct? If so then me and everyone [I] know will be OUT!”

The mass exodus wasn’t limited to celebrities offended at the thought that someone might profit off of their images. Major brands also voiced their objection to the new terms. National Geographic—who in early December was ranked as the number-one media brand on Instagram with 588,000 Instagram followers—announced that it was suspending new posts: “@NatGeo is suspending new posts to Instagram. We are very concerned with the direction of the proposed new terms of service and if they remain as presented we may close our account.”

The negative reaction to the new terms was so severe that Instagram quickly announced that its terms were misunderstood. Only one day after the new terms were announced, Instagram founder and CEO Kevin Systrom suggested in a blog entry that “[l]egal documents are easy to misinterpret.” According to Systrom, “[o]ur intention in updating the terms was to communicate that we’d like to experiment with innovative advertising that feels appropriate on Instagram. Instead, it was interpreted by many that we were going to sell your photos to others without compensation. That is not true and it is our mistake that this language is confusing. To be clear: it is not our intention to sell your photos. We are working on updated language in the terms to make sure this is clear.”

Systrom repeated the same sentiment in a follow-up blog entry. “You also had deep concerns about whether under our new terms, Instagram had any plans to sell your content. I want to be really clear: Instagram has no intention of selling your photos, and we never did. We don’t own your photos—you do.” In the same post, Systrom announced that Instagram would be “reverting [the] advertising section to the original version that has been in effect since” Instagram launched in October 2010.

However, while the advertising section may have reverted to its previous language, other aspects of Instagram’s terms—specifically, the language that gives Instagram the right to do what users fear, namely, treat the service as one big stock photo service—didn’t revert to their previous form. It’s these changes, which went into effect on January 19, 2013, that actually give Instagram far greater rights than it enjoyed under the older terms, including the right to license users’ images to third parties without compensating users.

One of the most significant changes is in the language regarding rights. Under the previous terms, Instagram received 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 Content [which includes images, photos, videos, sound, etc.], including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly…will not be distributed outside the Instagram Services.” While this was a relatively broad license, this language didn’t give Instagram the right to license users’ photos to third parties. Under the new terms, Instagram receives a “non-exclusive, fully paid and royalty-free, transferable, sublicensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy…” [emphasis added]. The addition of the term “sub-licensable” in this
phrase gives Instagram the right to license photos posted to the service without having to share royalties or license fees with the photographers or other users who posted the images. The inclusion of such language isn’t necessary if, as Instagram has stated publicly, it has no intention of selling users’ photos.

It’s also important to recognize that the terms of the agreement itself, as opposed to any public statements made by Systrom or anyone else at Instagram, is what a court will generally consider when determining parties’ respective rights under the agreement.

The bigger problem, which seems to have been largely ignored, is the potential impact that the rights language can have when combined with other language in the new terms. The new terms include a series of representations, including two significant ones: first, that the user posting photographs isn’t violating any privacy rights, and second, that the user will pay all royalties and fees owing to any person by virtue of a photograph being posted to Instagram. Separately, these terms can be trouble enough, but together with the license language detailed above, they have the potential for creating a nightmare scenario for users.

Consider for a moment a situation where a photographer uses Instagram to post a photograph of a professional athlete prior to a sporting event. Under Instagram’s terms, it has the right to license that image for advertising purposes, and isn’t obligated to share the license fees/royalties with you. It’s bad enough that the photographer isn’t sharing in the license fees for the commercial use of an image. However, under this scenario, the nightmare is just beginning. Since the photographer most likely didn’t obtain a model release from the athlete featured in the photo, the athlete now has a claim for the use of his or her image in connection with advertising. Under the terms, the photographer who uses Instagram’s service is responsible for paying “all royalties, fees, and any other monies owing any person by reason of [photos] you post on or through the Instagram service.” So at the end of the scenario, Instagram gets to keep the license fees for the commercial use of the photo, and the photographer gets to pay the athlete who didn’t sign a model release.

The only exception to the license is Instagram’s privacy policy. While it may be possible for individual users to indicate that photos are private and not for public viewing, that limitation won’t help entities like National Geographic, celebrities and anyone else who’s posting images in an effort to build up a following through social media.

Mike Tomkins, news editor at Imaging Resource (, recognized a similar problem with the new Instagram terms. Writes Tomkins, “Should it choose to do so—and it’s important to note that it hasn’t yet stated any such plans—Instagram could sell user content to a third party. Users would have no say as to which parties the content was licensed to, nor how it could be used, and they would receive no payment for that usage beyond having received their access to the Instagram service free of charge.”

The new terms also contain some fairly comprehensive language that attempts to limit Instagram’s liability, requires its users to pay the cost of defending Instagram against claims made by virtue of images posted to the service and a provision that significantly limits the time in which a user may bring a claim against Instagram. The new terms also include an arbitration provision. Arbitration is a form of alternative dispute resolution; it allows people to resolve their disputes but without presenting their case to a court. As discussed in my article, “Arbitration, Friend Or Foe?” (DPP, November 2012,, there are pros and cons to arbitration that should be considered before entering into an agreement with an arbitration provision. The true extent of the fallout from Instagram’s faux pas may never be known. Some sources suggest that in the month preceding Instagram’s new terms going into effect, its user base declined by as much as 40% or more from the more than 15.6 million daily active users on December 15.

“Brevity is the soul of wit”

While the legal battle over Instagram’s terms proceeded in San Francisco, a court in New York released a decision interpreting Twitter’s terms in the case involving photojournalist Daniel Morel, Agency France Presse (AFP), Getty Images and The Washington Post. Although perhaps not a model of clarity, the decision analyzes whether Morel’s posting of images to Twitter authorized AFP to download and license the images.

The facts of the case are relatively straightforward. Morel was in Haiti in January 2010, when a devastating earthquake struck. He captured images of the aftermath and transmitted some of those images to Twitter through a TwitPic account. Shortly after Morel uploaded, the images were reposted to the Twitter account of Lisandro Suero, who indicated that he had exclusive photographs of the earthquakes. AFP’s Director of Photography for North and South America found the images on Suero’s Twitter account and sent eight of them to the AFP photo desk. AFP ultimately transmitted the photographs to Getty, who in turn provided the images to the Post (the Post published four of Morel’s images). Because of the way the images were originally obtained—from a Twitter account other than Morel’s—the images weren’t even credited to Morel initially.

A day after the images were originally transmitted, AFP started to question whether attribution to Suero was correct. The inquiry resulted in AFP issuing a “caption correction,” identifying Morel as the photographer. The caption correction was transmitted on AFP’s wire and also went to Getty.

If the issues with Instagram and Twitter bring one concept into sharp relief, it’s the importance of reading and understanding the terms of a social-media service or website before deciding to upload images.

Corbis quickly joined the fray when its corporate counsel emailed Getty advising that Morel was “exclusive to Corbis.” While Getty removed images credited to Morel, it didn’t remove the images initially transmitted, as those had been credited to Suero. AFP finally issued a “Kill Notice” regarding Morel’s photos, and a copy of the notice went to Getty. Meanwhile, the Post published four of Morel’s images. In a turn of events more befitting a comedy of errors, nearly two months after the earthquake, Morel’s attorney sent a letter to the Post advising that Morel would allow the Post to display his photos provided the captions were corrected to credit Morel. The Post never received the letter. It did, however, receive a notice from Getty several months later advising that the images should be taken down, and the Post ultimately removed the images from its website.

In March 2010, roughly two and a half months after the earthquake, AFP filed suit against Morel in the U.S. District Court in New York. In this preemptive strike, AFP sought a declaration that AFP’s use of Morel’s images was authorized under Twitter’s terms, and therefore, AFP couldn’t be liable to Morel for copyright infringement. Morel countersued, accusing AFP, Getty and the Post of copyright infringement.

On January 14, 2013, U.S. District Judge Alison J. Nathan released a 58-page summary judgment opinion. A court grants summary judgment when it’s able to resolve aspects of the case, and sometimes the entire case, by making legal rulings based upon undisputed facts. Summary judgment prevents the court and the parties from wasting the time and expense associated with a trial when there’s no dispu
te over the facts.

In her opinion, Judge Nathan analyzed Twitter’s terms to assess whether AFP had the right to republish Morel’s images without his consent. Under Twitter’s terms, users like Morel grant Twitter the right to make content “available to other companies, organizations or individuals who partner with Twitter for syndication, broadcast, distribution or publication of such” content. Similar to Instagram’s terms, Twitter’s terms provide that any such use of content may be made without compensation to the user who posted the content to Twitter. AFP contended that this language was broad enough to give it the right to use Morel’s images once he posted them to Twitter.

When interpreting Twitter’s terms, the Court ruled squarely in Morel’s favor. As the Court explained, “It suffices to say that based on the evidence presented to the Court the Twitter [terms] do not provide AFP with an excuse for its conduct in this case…. Put differently, the evidence does not reflect a clear intent to grant AFP a license to remove [Morel’s images] from Twitter and license them to third parties….” The Court went further when addressing both AFP and the Post: “AFP and the Post raise no other defenses to liability for direct copyright infringement, and, in fact, concede that if their license defense fails—as the Court has determined that it does—they are liable for direct copyright infringement.”

The Court noted that Twitter’s terms “‘necessarily required’ Morel as promisor to confer certain rights of use on two classes—Twitter’s partners and sublicensees….” However, even with Twitter encouraging and permitting broad reuse, the terms still didn’t establish “Twitter’s intent to confer a license on ‘other users'” like AFP. The Court also noted that Twitter’s terms suggest “that content should not be disassociated from the Tweets in which they occur,” and that “AFP’s removal from Twitter and commercial licensing of the Photos-at-Issue is not akin to the rebroadcast of a Tweet.” Although the Court ruled that AFP and the Post are liable for copyright infringement, the decision doesn’t necessarily obviate a trial. There are still factual issues, such as whether AFP and the Post willfully infringed Morel’s copyrights, and how much Morel should recover from AFP and the Post as damages for their infringement.

Unlike AFP and the Post, Getty also argued that it can’t be liable for copyright infringement because it’s entitled to the benefit of the safe harbor (limited immunity) applicable to online providers under the Digital Millennium Copyright Act (DMCA). The Court found that there’s a factual dispute as to whether Getty qualifies, and thus, Morel will have to proceed to trial and let a jury decide if Getty enjoys the limited immunity under the DMCA. As with AFP and the Post, the question of whether Getty is a willful infringer is an issue that will have to be resolved at trial.

While the Court’s opinion regarding the Twitter terms and their limitations was generally positive for photographers, the Court’s analysis regarding damages wasn’t favorable. The Court squarely rejected Morel’s theory of damages, which would have resulted in an award of statutory damages against AFP and Getty “in the tens or hundreds of millions of dollars.” AFP and Getty argued that they’re only liable for one award of statutory damages each—a maximum of $30,000 per image for infringement, and up to $150,000 per image for willful infringement—and not responsible, as Morel contended, for an award of statutory damages for every subscriber who used the images. The Court ultimately ruled that “AFP and Getty are, at most, each liable for a single statutory damages award per work infringed.”

“There is nothing as mysterious as a fact clearly described”

Garry Winogrand’s quotation about things clearly seen applies with equal force to social-media terms as to photography. Since contract terms vary from one social-media service to another, there’s no way to summarily conclude that posting images to social media will or will not result in a loss of rights. However, at the risk of oversimplifying the issue, additional scrutiny is justified anytime the terms include the right to “sublicense” the content that may be posted. Indeed, had Twitter exercised its right to sublicense Morel’s images to AFP, the Court’s decision would have been dramatically different (and considerably less favorable for Morel).

If the issues with Instagram and Twitter bring one concept into sharp relief, it’s the importance of reading and understanding the terms of a social-media service or website before deciding to upload images. Moreover, since the rights to any images uploaded will be governed first and foremost by the terms, the decision to accept the terms should be informed by the terms alone, and without relying upon any public statements or other representations appearing on the service’s website that may run contrary to the terms.

Samuel Lewis is a Board Certified Intellectual Property law specialist and partner at Feldman Gale, P.A., in Miami, Florida, and a professional photographer who has covered sporting events for more than 25 years. 

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