Instagram Still Has the Right to Commercialize Your Work (or Why You Should Read Terms of Service Carefully)

The creative community is comprised not just of professional artists, creators and innovators, but of anyone who creates, experiences or shares work in a way that supports creativity.  As we live more of our lives online, even those who do not create art for a living occasionally get a taste of the struggles professional creators face.  Indie artists and innovators have long struggled with the problem of overreaching contracts, which as freelancers, they often feel forced to accept “as is.”  This week’s flap over Instagram’s proposed change to its terms of service gave Instagram users a taste of what it is like to be a professional creator in numerous ways.  Not only did Instagram users express some of the same feelings of exploitation when they feared their work would be used and distributed by Instagram for commercial gain without their permission, but many also felt frustrated that their only option was to stop using a service they enjoy and rely on, rather than opt in or out of the proposed terms on a case-by-case basis.  Instagram users spoke out, loudly. And Instagram responded…  Or did they?

Instagram has issued a statement saying that it has heard its customer’s complaints, is removing the clause that most offended its customers, and reverting to its old terms of use.  But ironically, the clause that caused the outrage, and which Instagram says it has removed, was merely a disclosure and acknowledgment by the user of how Instagram could use a customer’s images.  Removing that clause alone doesn’t change the license the user grants Instagram.  Moreover, even if Instagram reverts to its current terms of service, those terms of use not only permit Instagram to commercialize user posted images in virtually unrestricted ways, they pass the responsibility for paying any royalties or fees owed for such commercialization on to the user who originally posted the works. 

Unless Instagram substantially revises its current terms of use to be more user friendly, users should consider two major issues before posting works to Instagram. Namely the overly broad license Instagram takes to images posted on the site that allows Instagram virtually unlimited use of user images, despite there being no connection to that use and the site’s functionality, and the fact that Instagram terms of use requires users to make warranties not just about the work they post, but about how that work will be used by Instagram now and in the future, holding users liable for royalties, fees, and other monies owed to any person as a result of the content posted and used on the site – despite the fact that a user cannot predict or control how that content will be used by Instagram or its services.

Overly Broad License

It is reasonable for sites that rely on user-generated content to take a license to content users upload to the site in order to enable the site to function and to improve services to users.

In responding to user complaints this week, Instagram declared:

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