Promotional Benefit Or Rights Grab?

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.

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