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.”

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