TLDR: The hidden price of Instagram’s terms of use

By | Copywrite, Legal, Photography, Social Media, Terms of Use | No Comments

TLDR. Let’s be real, most of us did not read the terms of use before we downloaded Instagram. Or probably any other social media platform, for that matter.

For emerging artists, photographers, and influencers, deciding to opt out of social media because of its terms of use is impossible. Social media has become a routine part of our daily lives – an essential service if you will. It’s how we consume information, share our work, gain exposure to new audiences, make a living, and keep in touch. But for some, the “price” you pay to be online may be much greater than you anticipated. And then what? What are we to do?

Let’s back up:

Earlier this month, a court ruled that Mashable can embed a photograph that was originally posted on Instagram on their website without the photographer’s permission and without breaking any copyright laws. Their defense hung on Instagram’s terms of use. Stephanie Sinclair, a photojournalist, posted a photograph on Instagram. Mashable first reached out to Sinclair with an offer of $50 to use her photo in their article. Sinclair declined and Mashable went ahead and used it anyway. Later, Sinclair sued claiming copyright infringement.

Instead the presiding judge, U.S. District Court Judge Kimba Wood, ruled that because Sinclair “granted Instagram the right to sublicense the Photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph,” Mashable did not break any copyright laws. Within Instagram’s terms of use, they write: “you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). You can end this license anytime by deleting your content or account.”

This decision puts emerging photographers in an impossible position – either allow others to post your work without your permission or delete your account. Instagram is one of the world’s largest photo-sharing sites and has over one billion users. So what should we, as creators, do?

For starters, we can push Instagram to do more to protect creators. Most terms of use are long, unwieldy and chock full of legal jargon. Terms of use should be written in a way that is accessible to the general public. Hayleigh Bosher writes of a few ways Instagram can do better. For example, she argues that Instagram should adopt a “Notice and Takedown” process, similar to YouTube’s process, which offers users some control over their content” (Instagram’s terms of use says, “content will continue to appear if you shared it with others and they have not deleted it”). To learn more about copyright, check out TCC’s one-pager.