The blogosphere is abuzz today with news that Instagram has updated and changed it’s Terms of Service (TOS) today. You can read it here. Basically, skip down to the rights section and you can read what we call a blatant rights grab by Instagram. They can use your images or even a photo of you and even your name in ads. They can license your photos to Pepsi, or Nike, Toyota, or anyone they want, charge a fortune and your cut is ziltch, zip, nada, nothing. Good business model. For them. Free content, real money. One of the fine print we love is that they state if you are underage, you are claiming your parents give consent. Right. At least they let you keep ownership of your own photos, they just take any and all rights they need to make a buck.
So use Instagram and make their stock owners and investors rich. You get “exposure”. See how many lattes that buys at the coffee shop. We’ll guess ziltch, zip, nada, nothing.
#1 by Benoit on December 18, 2012 - 9:34 am
Twitter, Instagram, Google+, Facebook,… in all those cases, you get what you pay for…which is nothing much of commercial value.
Makes sense if you’re Jane Q. Public and don’t care about copyright and want to “share”. Might even make sense for the bottom tier studios to connect with their clients.
But in the commercial realm…no buyer will ever contact photog directly. It will all end up on an RF photo buffet…
Of course, it will be interesting to see what happens when someone sues for rights of publicity or such because their likeness was used on an ad campaign without release.
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#2 by Jack and Ed on December 18, 2012 - 10:08 am
There are reports I’ve seen that evaluate value and they state that you do “pay” for these services in information about yourself that is harvested and dissected. Even a simple Google search, gives Google valuable information that they use in advertising and in improving their algorithms. Why is Google king and AltaVista dead?
A lot depends on your definition of “value”. All I know is that Google has more money in the bank than I do so their business model on harvesting info seems to be working. I have a cousin who used to work at the Gartner Group and has been the CEO of an information company for years. There’s real gold in the data mines of the Internet.
We’re just another brick in the information wall.
As far as advertisers using images, Toyota already used images harvested from Flickr for a brochure, without the photographer’s consent. It’s a new world we’re in and new business models are evolving. At least that’s my opinion.
And I agree with you, some of the possible court cases, including grabbing rights from minors is more than interesting.
Jack
#3 by Damian Vines on December 18, 2012 - 1:05 pm
Hi Jack,
Is there any legal precedent to date of a photographer or image content creator suing an entity such as Instagram, or similar, over the usage/sale, or otherwise, of an image that was grabbed from that users social media account that included a T.O.S. such as this? And what was the outcome? If an image is registered with the copyright office prior to it being posted on the social media site, would a photographer still have any hope of winning what he might consider an infringement case? Or does registration have nothing to do with this?
#4 by Jack and Ed on December 18, 2012 - 1:53 pm
Damian, Don’t know. Good question. Court cases would be Ed’s area and he’s tied up with lawyer stuff like depositions this week. I can tell you that registration is always a good idea, but a TOS like this creates a legal license to use your image. They can’t claim your copyright because that you have to do in writing. I’m sure they would grab it if they could. But this comes as absolutely close as you can get to taking your copyright, an irrevocable transferable license in perpetuity.
So I doubt an infringement case. In legal language I think the term is “sucks”, but I’d have to check with Ed on that.
#5 by Matt Timmons on December 19, 2012 - 1:30 am
I see an opportunity here. On every photo you upload, put a large, obtrusive but transparent-type watermark that simply says, “FOR LICENSING INFO, CONTACT ****”. That way if it’s a photo a business really wants, they can reach you for use of the original. Use Instagram as a free advertising platform for YOU.
Ed, can I get some sort of origination claim notarized for this idea? It’s worth tens.
#6 by wayne on December 20, 2012 - 3:26 pm
We the masters of the universe require you to give us all rights to any property you might own, real personal and intellectual in exchange for the privilege of breathing OUR AIR and drinking OUR WATER. Furthermore you must give us your first born son and first born daughter.
By continuing to breath OUR air and Drinking OUR water we deem that you have consented to this contractual agreement and have digitally signed same.
Is that about where these TOS’s seem to be heading?
#7 by Jack and Ed on December 20, 2012 - 3:42 pm
Wayne, One slight error. It should read “…first born son OR first born daughter.” Not “and” first born. Don’t want to make these folks look greedy, do ya? Other wise, yeah, that’s it. The real problem is now Instagram needs to justify financially it’s Billion dollar price tag. Obviously, this wasn’t the smartest way to monetize the service.
#8 by Edward C. Greenberg on January 8, 2013 - 10:06 pm
We have represented individuals who were subjects in such pictures who made claims under privacy statutes. Specifically NY Law which forbids commercial use of a person’s image, photo or likeness without signed, written consent.
Answering Damien’s question directly (since I am not a politician) I don’t know. I have not had one nor have I seen one. That doesn’t mean that someone hasn’t made a claim and a settlement resulted. Those things don’t become public. I will check on any “official reported cases” I am betting that they are few and far between but as my wife reminds me… often, I could be wrong.
#9 by Edward C. Greenberg on January 8, 2013 - 10:17 pm
I disagree with Benoit above. I have seen pictures used on social media sites, fan sites and all sorts of crappy stops on the Internet highway used for and by “meaningful” clients, ad agencies and celebrity mags which pay top dollar.
Never assume that an image has limited or no value. I presided over the sale of a stock agency many years ago. At the sale my client (the seller) shows me a picture of say, a wave. Perfectly ordinary shot. So routine and ordinary that even I …well maybe even my wife could have shot it. Absolutely nothing special about it and as my client said, “If it were shot for a high school photo class it would have received a ‘B'”. The photographer while a professional scratched out a living and never really established himself. This existential tale has an uncharacteristically happy ending.
My client tells me at the closing, that over just the prior few years the gross licensing on the image was about 1.3 million dollars. The image was licensed by dozens of consumer companies big and small until one day a large food company purchased a 2 year exclusive FOR FOOD PRODUCTS ONLY for $637,000US money. As Jack and I love to say, “Ya never know”.
Remember the immortal words of the sage Felix Ungar, ” When you assume, you make an ass out of ‘u’ and me”.
#10 by Damian Vines on January 8, 2013 - 11:26 pm
Thank you Ed and Jack. I really appreciate your responses and input. I want to buy your photographers survival manual book from you. I’ll send you an email.
#11 by Ken Brown on July 13, 2013 - 7:53 am
Isn’t it usually an ad agency rather than “Toyota” that steals the image? Many large companies outsource their marketing “creatives”. I would hope that the contract between the two indemnifies the purchaser if the supplier ships them stolen goods. I’m a photographer now, but I used to own a manufacturing company so I have worked both sides of the street.
I find it very bizarre that an ad agency would jeopardize a fat contract with a major corporation by swiping images off of the internet. Sure, the odds of getting caught aren’t high, but the downside is enormous. The company is going to be very unhappy when they receive a notice of infringement since they and not the ad agency are the most visible. That, I assume, would mean that the corporation’s legal office is going to have to do a bunch of work and generate some “expenses”.
If a customer sent me a image or link to an image and asked if I could make one fairly similar with a few changes to bring it inline with the overall concept, I would say, “sure” and depending how complex it was, it might only be a half day studio billing. Just get the model to smile and wave at the camera or whatever. Cheap, fast, releases and licenses all signed. Disclaimer: if it was a very notable photo, I wouldn’t recreate it for somebody. If it was only a generic photo of smiling happy people playing with a golden retriever, no problem.