Instagram’s Copyright Confusion

Guest Blogger: Devon Gawley, English Major SUNY Geneseo

“It’s photo sharing, reinvented,” brightly declares Instagram’s homepage. While this catchy tagline may be referring to Instagram’s unique photo editing and sharing program, the newest reinvention comes January 16th with a new terms of service that has many users on edge, stating,

“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.”

As was described in a new terms of service, the photos taken with Instagram would not be protected as individual property. Photos could be placed on advertisements through Facebook and other sites. Additionally, Instagram would receive a profit from the sale of these photos.Devon Gawley

In the wake of this potential policy change, Instagram users took to Twitter to voice their outrage.

Many claimed that this is a violation of their copyright. Twitter user, @FransMonk stated via twitter, “Bye bye #instagram Photographers be aware! Instagram’s new policy takes your copyright!”

Later last night, Instagram released a retraction stating that they would not be selling their users photos. But this complication, however brief, posed an important question for many users; who in fact owns the pictures posted on Instagram? Many users seemed to believe they have copyright over their photos as each is a piece of individual intellectual property.

Their argument against Instagram’s potential change in policy implied a violation in copyright and in selling the photos, the fair use doctrine which takes into account the intended outcome of the material.Instagram

The financial gain resulting from the photo’s sale disturbed many users as did their lack of control over the application of their photos.

Individual permission would not have been requested for each photo and the photographer would be given no information on the photo’s intended use. This ultimate powerlessness in the face of a large corporation reasonably frustrated many users.

In the intended draft of terms of service, Instagram was taking ownership of all pictures that are processed by the program. The current terms listed on Instagram’s webpage outline that Instagram does not claim any ownership over the photos posted on or through their services. However, in choosing to use their service, the user must give them the right to control and redistribute any photos.

The terms also explain the copyright ownership stating,

“Instagram Content is protected by copyright, trademark, patent, trade secret and other laws, and Instagram owns and retains all rights in the Instagram Content and the Instagram Services.”

Thereby, if the photographer owned the copyright, they could argue that Instagram was violating the copyright against the fair use doctrine. Unfortunately for the individual, they would be handing over their copyright and other rights when they agreed to the new terms of service.

While lawful, the choice to sell user’s pictures taken from Instagram was considered unreasonable. Woodrow Hartzog, an assistant professor at Samford University law school says, “I think it is fair to question the scope of many of these terms as potentially outside of the realm of what is required to operate.”

Instagram provides a service people to take photos, edit them, and share them amongst multiple social networking sites. The financial benefit from the products of their faithful users did not seem to be an operation requirement but rater, a profiteering scheme.

Instagram’s following of many unique and talented photographers became angry yesterday and the spontaneity the app provides in instantaneous picture sharing was almost destroyed. While Instagram’s quick recant of its new terms of service can within the same day, many users were made to look at this service with new eyes. Considering that the only way to protect personal photos was to delete the Instagram account, a drop in users was the potential result that forced Instagram to change its statement.

While Instagram has now repealed the term that allows them the right to profit from the photos, users will now be more wary of what they agree to on these sites. While a photograph may seem like personal intellectual property, the terms of service still state that Instagram has a right to the photos and in posting them on the site, the user agrees to this.

Understanding copyright laws and the true ownership of materials posted online is important if privacy is to be maintained. This uproar will hopefully encourage users to look and understand before they agree to any terms.

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Vincent LoTempio

My mission as an IP Attorney is to help people recognize, protect and profit from their good ideas. As a Registered Patent Attorney based in Buffalo, New York, I focus on all types of Intellectual Property law. As an IP attorney, I file patent and trademark applications in the United States and abroad. I manage large corporate patent and trademark portfolios, and have established associations with hundreds of Intellectual Property law firms around the world. I have extensive experience in patent and trademark prosecution, patent and trademark infringement litigation, trademark registration and copyright registration. Call me TOLL FREE: 1-877-351-5547 to protect your ideal today. LoTempio Law Website File A Patent File A Trademark File A Copyright YouTube Twitter