Recently, one social media site’s public announcement highlighted
this question in appalling clarity. On December
17, 2012, Instagram announced that it had the right to sell any photo that you
took and uploaded using its service – in other words, to “commercialize” it. (See
CNET’s article about the change in terms: Declan McCullagh, “Instagram says it now has the right to
sell your photos,” CNET,
Dec. 17, 2012.)
If you are
unfamiliar with Instagram, it used
to be a standalone company, but was recently acquired by Facebook and is used on Facebook to share
customized photos with your networks.
Here’s the rub: the
right to distribute (or not to) is actually an exclusive right set forth in the
Copyright Act as being owned EXCLUSIVELY by the copyright owner. 17
U.S.C. §
106. Not by a vendor who handles the
distribution.
Unless the author has licensed its ability to redistribute
an “original work of authorship fixed in a tangible medium of expression” (as an
original photograph surely is) to another, any redistribution of a published
work constitutes copyright infringement under 17
U.S.C. §
501, and carries certain remedies and penalties depending on the context.
The public outcry in response to this notice was apparently
widespread, as Instagram immediately appeared to retract this statement, and stated
that users retain the copyrights in their original photographs even when
posting them using Instagram’s tools. Declan
McCullagh and Donna Tam, “Instagram apologizes to users: We won't
sell your photos,” CNET,
Dec. 18, 2012; see also Instagram
Blog, “Thank
You and We’re Listening,” Dec. 18, 2012.
Its restatement of the policy suggested
that Instagram believed the hue and cry to have been solely based on a
misunderstanding of the revised terms of use and privacy policies.
In this restatement, Instagram explained that ownership
rights would not change as a result of this policy, and neither would any privacy
settings users have already set. Current
Version of Instagram’s Privacy Policy and Terms of Use, updated Dec. 18,
2012.
The Copyright Alliance points out that this explanation does
not meant that Instagram cannot commercialize your images – in fact, the text
that Instagram removed was merely a disclosure of the ways in which it “can”
use your photos:
“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.” (emphasis added). Read
the Copyright Alliance’s full article for more on this point, “Instagram
Still Has the Right to Commercialize Your Work (or Why You Should Read Terms of
Service Carefully),” Dec. 21, 2012.
And, try to stay on top of changes to these policies in case
changes are made that further impose on your privacy or intellectual property rights. Many of these policies have a “these terms
can be modified without prior notice” provision, but the sites may also host blogs
that announce new features or changes to their services. You might want to subscribe to them (through
RSS feeds or email) so that you are notified promptly of any advertised changes.
Here are links to some of the more commonly-used social
media sites, and their relevant blogs (if available):
You might also be interested in posts from The Copyright Alliance
(their article on Instagram is here)
or the Electronic Frontier Foundation
(their article on Instagram is here)
generally, as they both cover issues like these on a regular basis.
Posts
Good stuff!!! you are absolutely right we should all first confirm to all terms and conditions before we trust any of these social media network!! I also have an account with Instagram but i was not aware that it can sell our photos.. thank you for useful information! Choose Options
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