This last December, Instagram infuriated its base of smartphone photographers when it released a newly revised terms of service that appeared from the language to reflect an extended rights grab by the service. The response went as quickly viral as the social media giant’s offerings, with everyone from National Geographic to Justin Bieber threatening to quit the extremely popular photo-sharing service thanks to new wording like this: "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."
Myth: Instagram Is Bad
Instagram responded quickly with a redaction to the areas addressing use of user-generated content by advertisers less than two days later. Cofounder and CEO Kevin Systrom also penned a lengthy post defending the legalese of the changes while insisting despite the language that Instagram didn’t have the intention of selling customer content as advertising. Additionally, questionable statutes addressing the liability of Instagram, or rather the lack thereof, were added to the user agreement and remain in effect under the new terms, which took effect in January.
Prior to all of this, there was already something of a virulent "anti-Instagram" mentality on the part of many traditional photographers, who have argued that the endless stream of free imagery devalues the work of professionals. Sadly, while they’re correct in many regards, these arguments are quickly becoming irrelevant. Most likely in response to the snafu, January was the first time that Instagram released official traf-fic statistics, and they’re impressive.
Despite initial (and, most likely, erroneous) reports that the company lost roughly a quarter of its daily active users over the revised terms, Instagram now claims that their user base expanded over the course of a single month, from December to January, by a whopping 10%. That translates to a staggering 90 million monthly active users worldwide. Instagram says that these users share roughly 40 million photos a day.
Things are starting to look better for photographers’ rights when it comes to social media, as well. This January, District Judge Alison Nathan of Manhattan established an important precedent when she found that the Agence France-Presse (AFP) and The Washington Post had trespassed on the copyright of photojournalist Daniel Morel. Shots during the aftermath of the Haiti earthquake were posted to Twitter by Morel, who was signed exclusively with Corbis for distribution. The images were then co-opted online and sold to the AFP by a man from the Dominican Republic named Lisandro Suero. Getty (who also was named in Morel’s countersuit) and the AFP began to license the images until discovering the error through Morel. Quite a few images were published worldwide with Morel’s byline while some gave credit to Suero, making it difficult to find and remove them all.
Interestingly enough, in response to Morel’s cease-and-desist, the AFP made a rather bold claim by stating in a preemptive lawsuit against Morel that Twitter’s terms of service granted them rights to profit from the images as they were freely available online. (One wonders how the AFP would have reacted if their own licensed content had received the same treatment.) The case is still continuing, and the damages have been limited, but Judge Nathan’s decision is important in that it makes it clear that it’s a violation of Twitter’s agreement for another party to use imagery taken from the site without permission for commercial gain, while rebroadcasting and reposting of an image is acceptable under the correct circumstances and terms.
In short, what matters the most when using your social media site of choice is that you’re smart about how you use the service in order to keep it from using you. In the last Misinformation column, we discussed how social media is part of a photographer’s overall landscape and how you can, indeed, use it to make money for your business. The profits may not always be direct, but as several photographers known for an "online presence" are finding, attention often brings a variety of opportunities that also can lead to income.
Social media is an incredible promotional tool for disseminating your work. The downside is that metadata and authorship rights often can be removed, but the upside is that social media is just as useful for artists to track their work and potential infringements through the exponential eyes and ears of a well-engaged fan base. It’s also smart to avoid potential problems from the get-go by copyrighting and watermarking images prior to upload, even if just "Instagramming." Several watermarking apps are available if you use a smartphone.