Instagram (aka Facebook) Declares Itself Owner of User Photos – Or Not

by Dan Holden | December 18, 2012

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Reports today said that Instagram, the photo-sharing app acquired in a surprise $1 billion deal by Facebook earlier this year, had delivered its own big surprise: a new set of terms that claimed the right to sell users’ photos without notification, permission or payment. Outcry was immediate, though, and Instagram dropped some of the more controversial wording by the end of the day.

One reason for the quick turnaround was that the reports said users could only opt out of the new terms by deleting their Instagram accounts altogether before January 16, 2013. An article in Wired today even showed users how to download their photos from Instagram and delete their accounts before the January deadline.

The new policy was said to extend to Facebook the perpetual right to license all public Instagram photos to companies and other organizations for whatever purpose they have in mind. The policy had the further backing of Facebook’s recently modified general user policy, which allows broad-brush policy changes without user input.

But almost as quick as the reports were published, Instagram fired off a new blog post saying that its terms had been misinterpreted and it does not intend to do any of that.

“From the start, Instagram was created to become a business. Advertising is one of many ways that Instagram can become a self-sustaining business, but not the only one,” said the post, authored by Kevin Systrom, co-founder of Instagram. “Our intention in updating the terms was to communicate that we’d like to experiment with innovative advertising that feels appropriate on Instagram. Instead it was interpreted by many that we were going to sell your photos to others without any compensation. This is not true and it is our mistake that this language is confusing. To be clear: it is not our intention to sell your photos. We are working on updated language in the terms to make sure this is clear.”

One change made immediately was to remove the language implying that user photos could be used in advertisements.

“The language we proposed also raised question about whether your photos can be part of an advertisement. We do not have plans for anything like this and because of that we’re going to remove the language that raised the question,” wrote Systrom.

Still, the app company’s post did little to straighten out the confusion. “We envision a future where both users and brands alike may promote their photos & accounts to increase engagement and to build a more meaningful following,” said Systrom. “Let’s say a business wanted to promote their account to gain more followers and Instagram was able to feature them in some way. In order to help make a more relevant and useful promotion, it would be helpful to see which of the people you follow also follow this business. In this way, some of the data you produce — like the actions you take (eg, following the account) and your profile photo — might show up if you are following this business.”

Instagram said users own their content and Instagram does not claim any ownership rights over your photos.

“Nothing about this has changed. We respect that there are creative artists and hobbyists alike that pour their heart into creating beautiful photos, and we respect that your photos are your photos. Period,” said the post.

Nevertheless, some damage clearly had been done.

Tom Wellborn, a New Jersey-based IT contractor, said he’s already dropped the service. “Their recently privacy policy updates didn’t jive with me,” said Wellborn, adding that he will now use Camera Awesome by SmugMug.

Others, such as Eva Bodine, co-founder of Horsefly Productions Creative Media in New York, said the new policy revision could keep them from joining the Instagram community at all.

Users also said they will likely migrate to a variety of other photo apps, including Flickr and Tadaa, among others.

Significantly, the new policy effectively still makes Facebook the world’s largest stock photo agency – without the hassle of having to pay users for their photos.

And, the policy change could still run into roadblocks. Most notably, it has no restrictions on the use of photos of minors, and corporations with readily identifiable images in the shot may object to the indiscriminate use of their logos or other trademarked and copyrighted materials.

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