Instagram issued a new Terms of Service yesterday (here) that will allow the company to use your photos commercially without any compensation to you:

Some or all of the Service may be supported by advertising revenue. 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.

You have until January 16, 2013 to opt out and delete your account.

I also found this next part troubling:

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;

Couple thoughts on this beyond the obvious WTF that many of you who use the service and sell images professionally will have.

According to Cnet, once the deadline has passed you’ve given them a license and irrevocable right to sell any images you’ve uploaded in perpetuity.

Facebook paid 1 billion dollars for Instagram which came out to be $30 per user. Selling everyone’s photos seems like an easy way to make all that money back.

At over 1 Billion images and counting, doesn’t this make Instagram the largest stock photo agency in the world?

Most companies require royalty free worldwide licenses to your images in order to display them on your account and move them around the world on their servers. This is the first time I’ve seen a license to display images commercially. It can’t possibly stand up to the anger they’re about to experience. On the other hand a billion dollars is a lot of money. This will get them there faster than anything else. Could this be a shift in “free” services who want multi-billion dollar valuations and exits for their investors? This could just be the beginning.

UPDATE: Statement from Kevin Systrom co-founder, Instagram (here)

The language we proposed also raised question about whether your photos can be part of an advertisement. We do not have plans for anything like this and because of that we’re going to remove the language that raised the question. Our main goal is to avoid things likes advertising banners you see in other apps that would hurt the Instagram user experience. Instead, we want to create meaningful ways to help you discover new and interesting accounts and content while building a self-sustaining business at the same time.
 

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80 Comments

  1. How will instagram get around the lack of model releases for pretty much every image on instagram? If I photograph my neighbor who works for Coke and instagram turns around and uses that photo in a Pepsi ad, I for see many expensive law suits a head for instagram.

    • my guess is that they will get businesses to pay for advertising next to images of their business/food/coffee. they can use the geo location to make sure the images were taken on the premises. possibly resell the images to them for use in ads. I would think they would avoid all images with faces in them.

    • Doug,

      I’m (cynically?) kind of assuming that ultimately they don’t need to care about whether you have the rights, model releases or whatever for your photos. Assuming i’ve read this right, they can take your photos and sell them on and *you* are the one that’s liable if they get sued, and if that’s the case would they even bother to fight it???

      “You represent and warrant that: (i) you own the Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in these Terms of Use; (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; and (iv) you have the legal right and capacity to enter into these Terms of Use in your jurisdiction.”

      On the flipside
      a) i suspect that this is another facebook style (after all they own them), lets throw out the contract most in our best interests and see if anyone complains attitude and water it down it they do.
      b) have you seen the photos on instagram, maybe i’ve missed the good ones, but pretty much all the ones i’ve seen, the people in them would be hard pushed to recognise themselves anyway – how on earth you can monotise that escapes me.

      • I agree that instagram’s TOS probably assigns blame to photographer in the case of model releases, but I think when lawyers get involved reguardless of TOS they are going to go after the deepest pockets. I remember when a big telcom compnay in australia used someones flickr images, and was sued big time by the person in the ad and lost some big $$.

  2. As a photographer for over 25 years, I”m standing here watching the craft and profession melt down in ways I never imagined. This was kind of like the straw the broke the camels back for me regarding all the social media that pervades our lives. I’ve already used Instaport to down my images locally to my computer and deleted my account.

    I’m now looking at other options to share that work but right now it seems best to create a simple website for that work, and link that from other social media portals.

  4. The bottom line is that when it comes to web services, if you’re not paying for it, then you yourself are the product being sold. On Facebook it is personal information and likes – but those are somewhat vague. On Instagram it is a tangible asset, a photo, so people can wrap their heads around it being sold to advertisers. But you could say that the compensation to photographers is the free (and amazing) service Instagram offers – a service that is expensive for the company to maintain. Facebook bought them for a reason – they saw the statistics that the service was bringing in, the potential to make money. I’m just surprised it took this long.

  5. I’d expect better journalism from you. This is “fear mongering”. They want to sell ads along side of instagram images.

    To “opt out” just set your privacy to “private” and only your friends can see your images. They say in the new terms of service that this is based on your privacy settings. Writing a balanced news piece doesn’t spread virally though.

    • oh really? Facebook sells ads next to your images. Why does their TOS say this:

      We do not give your content or information to advertisers without your consent.

      • rob,
        I’ve been curious about the magazine accounts on Instagram. NatGeo, Nylon etc.. post a LOT of work. Have you heard anything in the professional community about this move?

        • that’s a good point. I know NatGeo encourages their photographers to use instagram so this will be a problem for them. I’ll be at their HQ in early January so I can ask then if we don’t hear anything. I’m thinking we will hear clarification from IG on this but maybe their just going for it it and will not respond.

          • I just received an email from my agent about the new terms of service and consequences for us in licensing our images. There is supposedly something about opting out of the new TOS before January 16th by sending a letter. However they still are warning their photographers about using the service. I for one will not.

        • @NatGeo’s IG account currently reads “@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.”

  6. Doug- I’m sure you’re correct in that situation, but your sunset, desert tower and Pho are fair game.

  7. WTF is right!

    Thanks for posting this.

  8. Would Insta and FB actually sell a ©ed image from a professional photograph and risk a publicity and legal fiasco in the process? I have read the above segment of the contract, but find it hard to believe that’s what they want to do.

  9. I think Doug’s point above is important. Instagram has to know that, despite whatever T&C people may blindly click through, users will continue to post photos they don’t have rights to, or that contain trademarks and identities they have no authority to release for commercial purposes. So I doubt Instagram/Facebook would blindly use or license photos commercially without doing some due diligence lest they open themselves up to lawsuits (indemnification clauses be damned). I’m guessing this is over-reaching CYA as opposed to an expression of intent.

    Either way, this is why I don’t recommend using these kinds of services for any photos you don’t think of as ephemeral.

  10. So I delete my IG account but then what happens to the photos in their database? I upload higher res images then what get displayed to viewers, it is these higher res copies I’m worried about.

  11. As I said on Twitter:
    Who da thunk after paying $1B for #Instagram that #Facebook would now
    want to monitize it? Besides “everybody”, I mean.

    One opinion to the latest news is that if you are going to use a free
    service you should expect them to be able to make money off of their
    service (YOU) somehow:
    http://www.zdnet.com/so-instagram-can-now-sell-your-photos-get-over-it-7000008960/
    That article also links to a couple of services that help you to
    download your items from Instagram if you want to preserve them and
    then terminate your service with them.

    I don’t use Instagram, so this does not affect me directly, but it is
    one more (significant) application of downward pressure to stock
    photography prices (something that seems to be going the way of print
    newspapers). So for anybody who makes an income off of stock
    photography this is not good news (any more than Getty’s collaboration
    with Flickr was really good news in that regard).

    In a larger sense, this highlights the problem inherent in any Terms
    of Service that can change significantly with little notice to their
    users. Facebook has a particularly egregious history in this regard so
    it figures that anything they takeover is going to be afflicted by the
    same disease. I fear that it is a trend that will only accelerate with
    other services looking for ways to increase the bottom line.

    • Great article.
      Thanks for the link.
      A couple of the comments seemed to grasp some bigger picture, what’s down the road thinking as well.

  12. To those who seem to be saying “look, they probably wouldn’t ever sell these images commercially it is just so they can sell ads along side the images” ; I agree. That is likely what they are trying to accomplish here.

    But, to your more apathetic points of “don’t worry about it” – I disagree. By complaining about this over reaching language we can have the TOS more clearly articulated. If the terms aren’t over reaching from the beginning , then we have less to worry about down the line.

    If they’re going to put it in writing, it does all of us good to read and fully understand everything that they are asking for, and on the flip side of that, everything that we are giving them.

  13. It seems to me that IG doesn’t care whether there’s a model release or not. In the future (if it’s not already possible) I imagine each user will see different pictures associated with personalized ads. Odds of someone seeing/finding out about their own likeness being used are low, and if they do sue, IG can deflect blame to the photographer. At worst (for IG), they have to defend a small lawsuit once in a while, far less than the cost of the pictures they aren’t paying for. The photographers can’t gang up into an expensive, high-profile class-action suit because they agreed not to in the TOS.

    Call me a cynic, but even if that’s not what they plan to do, they’ve certainly left the door open to it.

    • I posted this above but I think it applies more here.

      I agree that instagram’s TOS probably assigns blame to photographer in the case of model releases, but I think when lawyers get involved reguardless of TOS they are going to go after the deepest pockets. I remember when a big telcom compnay in australia used someones flickr images, and was sued big time by the person in the ad and lost some big $$.

      • That sounds like Chang v. Virgin Mobile, which was eventually dropped for lack of jurisdiction because the suit was filed in Texas, so no cost to Virgin (other than lawyers).

        Of course a lawyer will try to sue everybody, but it doesn’t mean they’ll win, especially with IG’s argument “hey, the photographer told us it was fine,” … and, BTW, the photographer is covering our legal backsides:

        “You (and also any third party for whom you operate an account or activity on the Service) agree to defend (at Instagram’s request), indemnify and hold the Instagram Parties harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Service or those conducted on your behalf): (i) your Content or your access to or use of the Service; (ii) your breach or alleged breach of these Terms of Use; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by Instagram in the defense of any claim. Instagram reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Instagram.”

  14. Delete your Instagram account, then delete your Face book accounts.
    Problem solved!
    FB the owner of instagram continuously makes moves that would allow it to sell your images or copy righted works.
    Take away that content and they have noting to sell.

    • Regarding social media sites such as Facebook, it is not so easy for professional photographers and illustrators whose clients want to use their images on these sites to promote their businesses. Do we price the licenses to our images based on the worst case scenario, that is, the social media website sub-licensing our images to a major company for a major advertising campaign?

  15. If you don’t budget (or refuse to pay) for images, simply include a clause that posting images authorizes Instagram, subsidiaries of Instagram and future concepts of Instagram unlimited use of your images. Welcome to social media!

    I can’t wait to see the fallout from this policy.

  16. I’d be concerned for those photographers who have uploaded non iPhone/camera phone shots, ie. photographs made with a commercial intent. Many photographers only use Instagram as a platform to show their images or promote their whathaveyou – another outlet for their portfolios. Those images are what I would be most concerned about and where the copyright and usage may really have a much larger impact were they used in advertising.

    I’m a fan of Instagram, but I will be pulling out simply for the fact of overreaching TOS.

  17. Alfred Steiglitz was thrilled when the bicycle was invented because it got dilitante photographers out of the dignified world of photography. Maybe big brother Instagram owning the photos you create will get some of the flakes out of the field now. If you don’t wan’t to shoot with a camera, please go away. That instagram crap looks like 1972. It’s a temporary fad, and you are taking away income from real photographers by using it.

    • It’s as of photographers were counting on IG to deliver them to a higher level. Too me the images all look so -shot from the same role. Why is IG’s plan so worrisome? Why do photographers want to be lumped in to a group where their photos look cookie cutter?

    • Ya, because no real photographers have ever used Instagram. Get off your high horse. It’s usually the ones making proclamations like yours that are the biggest poseurs of all

  18. This seems to be another indicator that proper watermarks need to be used pronto.

    • Thanks for that link Jeff Singer.

  20. Facebook, Instagram, Twitter all bore me and give me a headache. Might as well go outside and shout into the wind. I like Tumblr. Hopefully they wont pull a stunt like this.

    Facebook stock has gone up almost 50 percent in 6 weeks. Hopefully it will go down more during the next 6 weeks.

    • I guess tumblr is next…?

  21. Sooner or later, photographers will finally figure out that there is no such thing as private property in digital. Digital is “social” in every sense of the word. It is a tribe where everybody shares everything with the village. The only people that don’t have to share are the chiefs. Right now, instagram is the chief and it will stay that way until some new young warrior comes along to be the new chief.

  22. It’s a great marketing tool for photographers, I’ve booked shoots from instagram however this verbiage is troubling and has me rethinking how much / what I post to instagram.

  23. Whether IG does or does not use photos without the photographer being paid and without permission – for me it does not matter. Account deleted. Simple as that. I refuse to be mugged by them. If everyone does that I think by the 16th Jan either the company is worth $1 rather than $1billion or they will retract the terms and conditions.

  25. Uhhhh…instagram is a FREE service that zillions of photographers have voluntarily used for the purpose of self-promotion, and now these photogs are all butthurt because IG is trying to turn some profit!? Give me a break.

    Who do you people think pays for all those insanely expensive servers and engineers that make IG possible in the first place?

    You can’t have your cake and eat it too, folks.

    • I tell you who pays for all those servers (and no, they’re not “insanely expensive” by any almost definition): advertisers pay for just about everything. No ads, no revenue. FB and everyone else relies on your information (which is analyzed and sold) to keep their advertising revenue growing.

      • 60 photos are uploaded every second to instagram – and over Thanksgiving that number peaked to 200 photos/second. Tell me again how it’s not expensive to support and host and serve those MILLIONS photos to MILLIONS of users all over the world.

        Someone is footing that bill. And seeing as Instagram has no advertising revenue, it’s about high time they made some smart business decisions which will earn them some money moving forward.

        People don’t work for free, and Apps are not a commodity.

        • Facebook owns IG so IG isn’t doing this to make money, Facebook is.

          • Tell that to IG’s investors, LOL. According to you the capital VC’s pledged to build and maintain IG was nothing more than a charitable donation.

            Yeah, right.

            • I’m assuming that when FB BOUGHT IG, IG payed out the pre-negotiated percentages to to their initial VC’s.

              Once you sell something, you no longer own it.

  26. I was on the verge of deleting my Instagram account (which I hardly use) but decided to wait for two reasons:

    1. This new policy is getting so much bad press Instagram might be forced to pull back. It seems to be a right of passage for social networking sites to retreat from ill-conceived policies. It really makes you wonder if anyone thinks about the potential impact before announcing these policy changes.

    2. A free promotion vehicle still has potential value. This policy change reduces Instagram’s usefulness, but it might still have some business value. Posting any quality image to a public sharing site has inherent risks. This isn’t the first rights grab scheme and it probably won’t be the last.

  27. If this proves to be profitable, I’m sure it would follow that FB does the same, as I’m sure their user base, i.e. RF stock library, is much larger. How many of us even know the current terms of the contracts we consent to when we click that “Agree” button? Maybe it’s time to start reading the terms of these contracts (haha).
    I’m certainly not against them making a profit, just seems like there may be a better way, without the violation.
    Instagram is a fun toy, but I will no longer be participating. Bye-bye!

  28. Law suits will no doubt happen but between the Arbitration Clause and Indemnification clause in the Terms, the user carries all the weight for anything that IG does … or doesn’t do.

  29. No one is mentioning the lack of privacy issues. People have photos of their kids all over IG that only family and friends can see.

    I swear if anyone, especially IG tried to use photos of my kids without my knowledge they’d be in for the lawsuit of a lifetime.

    • By agreeing to their TOS you give them the right to do anything they want with your images.

  30. I don’t really care that Instagram is going to monetize my iPhone shots with my cheesy filters. What is really troubling is the 2nd snippet that Rob posted that says YOU are liable for the content in the event of a lawsuit, not Instagram. So, if you take a photo of Justin Bieber looking at a Philip Toledano photograph inside the Getty and then Instagram licenses it to Pepsi for some advertising, you will be sued by Bieber, Toledano, Getty, Pepsi and Instagram because most likely you don’t have model or property releases for any of them.

    • exactly my worry as well.

      • Ditto. (Clicking blindly never pays; whether shutter release or agree buttons)

    • Maybe, but I doubt it. Just publishing silly policies on a Web site doesn’t mean they’ll stand up in court. If Bieber, Toledano, Getty and Pepsi were going to sue someone, it’s fair to assume their lawyers would conclude Instagram and Facebook have a lot more money than a photographer. There’s also the question of intent. You don’t need model/property releases for non-commercial use. Most of the images posted to Instagram are by amateurs. If Instagram is going to claim anything posted to its site is available for sale as a commercial image, I’m guessing the responsibility is going to fall on them to make certain the appropriate releases have been secured. I really doubt the Instagram terms of use are going to provide much protection when the lawsuits start flying. As I said above, I think it’s worth waiting this one out for a little while. This really sounds like a half-baked idea.

  31. If everyone quits using it, they’ll fix their TOS.

  32. It would appear that Instagram isn’t going to let photographers get in the way of their photos for revenue business plan.

    • That s$*t is funny!:-)

  35. It’s no surprise that Instagram/Facebook is trying to monetize their service, but this is a pretty far reaching way to go about it.

    We’ve seen Facebook capitulate on their TOS before under duress, so I hope everyone uses between now and the time the new TOS goes into effect (Jan 16?) to use their instagram accounts in protest. If there is a public outcry, it may force IG/FB to take another look at the plan.

    Search #instagramTOS or #blackout and join in the ‘fun’. It’s so easy, you can do it from home.

    It’s a fun tool that connects people, so I for one would love to see them reconsider this TOS.

  37. Like Flickr, 99% of Instagram is crap. The remaining 1% is full of at least hundreds of thousands of excellent photographers exploring every area of photography. Should IG pursue the worst case scenario and use images for stock/advertising, they will have a fantastic selection to choose from.
    Having said that, with the vast ocean of great images that exist on Facebook, IG, Tumblr, Flickr etc, the likelihood that one of  my images will be used for some high end purpose seems just as vastly unlikely. I don’t sell stock and most of the pro photographers I know don’t either. For me, what I gain from sharing around the web outweighs what I loose if a couple of my images are used by a corporation.
    My great passion and love is creating work and sharing it with the world. Sharing sites are the best way to easily show your images to the largest audience, now and for free. I have had dozens of  shows in the real world and they are expensive and time consuming. Less people are likely to view a show in a month than you might get in day on a sharing site.
    It feels bad to be taken advantage of and under valued. But we all have banks, insurance companies, our government, the medical industry, etc, treating us badly every day. Have you risen up in revolt over that yet? I haven’t. My free time goes to creating images and posting them.

  38. You have the choice to just not use Instagram.
    Yes, it’s a kind of cool thing to play with but they have to pay for developing it and giving it away to millions of people. All of these things are money making ventures – Facebook, Instagram, you name it. That was the original intention of the people that thought them up. Why does everyone nowadays think they should get something for nothing? The deal actually seems fine to me: you can use Instagram, this cool little app, endlessly, every day, post thousands of your photos with it and in return there’s a one in one billionth chance your photo of a bridge or a sunset will end up beside an ad.
    Don’t like it? Buy a real camera and make your own website.

  40. Why Instagram didn’t learn from what Flickr went through God-knows-how-many-years ago is simply beyond me. Contributors are legally savvy nowadays.
    For IG to backtrack within 24 hours and then condescendingly claim that “You’re reading it all wrong” (whilst still going ahead and altering their ToS) is about as weak as it gets.
    My Instagram account is now empty, save for a solid black square. It closes tonight. If they’d offered an Instagram Pro account for $10 a year, limited their Free account to 1 post a day and left the Rights alone, I’d have given ’em ten bucks. As it is, they’ve lost my business and content forever.
    Never used it for self-promotion anyway, don’t use Flickr for that either. Personal website remains the best option, imo.

  41. Who gives a shit. Delete your account. You ain’t getting paid for your pics now? So what’s the prob. ?

  42. The funny thing about users moving all their photos to other photo sharing services, all those services are just chomping at the bit to sell access to those users as well. They’re just not as organized as FB – but they will eventually have to keep the lights on (and the servers running).

  43. The new TOS release should have been a foreseen event, especially after FB made the purchase. The same holds true for other social sites where you don’t pay to enter the play ground. The new business model of free works. It is like heroin, get people hooked on the the service and bide your time until the moment is perfect. It won’t take too long until users are in so deep they wont know what to do when their life could be flashed on the big screen in Times Square or on some cable outlet for 15 to 120 seconds.

    What is it about violation of privacy or the use of you bed that upsets you? You did read that it would be okay for them to sleep in your bed, raid your frig at all hours of the day, and you wanted to do is use their playground to promote your product, now they can use it without your permission , which is like handing over the money in the till to them just because….Which is why users get so roiled up. People don’t like someone in their pockets pulling out the cash reciepts and tips.

    Look at it this way; Down-South Photography is just opening up the old pocket book so everyone [FB share holders] can get their fair share of the income. That is the way it works out. You worked hard to produce a well know brand and now you more than likely will have to eliminate part of the presence. The time could have been spent else where promoting the brand. I say you should have seen this coming.

    I would be fine with a monthly subscription rate to eliminate any issues, being discussed. To date I have not used IG and have uploaded so little to FB that if all followed suit the stock would be anorexic. I think the prime directive is to figure out how to make the business model work for you. What can you give to consumers for free so that when they are hooked, you can do what ever you want. Naw, I wont sell out like some other photographers have (TR). I still enjoy sweat equity, it is part of the passion that fuels the desire to be honest have integrity and an ethic that will stand the test of time. It isn’t easy but anything that has value is produced that way.

  44. The strategy for changing your TOS is now:
    1. Abruptly change it
    2. Apologize for wording you didn’t intend to mean what everyone thinks it means
    3. Retract something
    4. Nobody notices the other things because they are bent about the one thing that you’ve now taken back, so it’s cool now
    5. Repeat

    • Yes, you really have to wonder if this was a mis-step or a tactic (perhaps by parent company Facebook).

      • David. I think you’re onto something. From the beginning I felt that this was put out there by Facebook to see if anyone noticed. Then they semi-retract it.

    • 4(a) it like boiling a frog, start out nice and easy and gradually turn the heat up, you will never notice how much of your content they have pilfered.

    • Yes, its called, “Problem, reaction, solution”. You create a “problem” then you get a reaction and then a “solution” is created to solve the “problem” and then you get the sheeple to go in whatever direction you wanted them to go in in the first place. Its used all the time to distract from the real agenda – whatever it may be . . .

  45. Wouldn’t this give Instagram freedom to quietly sell access to the user accounts for the government to use without any hint that the government was accessing user accounts? I know the government can do this if they want to already, but usually there is some recognition of their hand at play. This leaves no trails.
    Just thinking.

  46. They move in the artists to give the area some cred then once the place is discovered they jack up the rent. Sound familiar?

  49. Not really surprised. I smelled this way back because when anything is free, and encourages group collaboration or submission, there is ALWAYS a catch. Knowing the IP industry fairly well, I yanked my pics.
    BTW, the ‘Oh gee, we’re sorry” note from Instagram’s CEO is double-talk. The TOU/TOS revision is no better as far as their options of usage goes, only more friendly. That should mollify all the hobbyists who enjoy social play smartphoneography.

    IF you have not seen this cynically humorous video commentary on Instagram users, go to: http://www.youtube.com/watch?v=Nn-dD-QKYN4

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