Instagram, Copyright Law, and You

Earlier this week some friends and acquaintances of mine had their images featured in a Mail Online story about a wedding whose hashtag trended, briefly, on Twitter. In a sane and just world, this is awesome! This is great! This is how eyewitness journalism works! You put up a snapshot on Instagram, someone asks if they can publish that image as part of a larger news story or a feature and then you get paid for it.

Wait, no, not that last thing. Definitely not that last thing, and not always the second-to-last thing either. And if you're thinking, "hey, that sounds like some B.S.," then congratulations: you're a decent functioning human being!

Here's the thing about copyright: when you create something, even if it's just uploading a quick photograph to Instagram or Twitter or similar, you own that thing. You want proof? I've got proof.

Instagram's Terms of Use:

Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service's Privacy Policy.

Facebook's Terms of Service:

You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:
For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

Twitter's Terms of Service:

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.
Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

In plain English, this just means that you're allowing these services to use your content. They're still not amazing -- you're either opting in totally or you don't use the service at all, and that "transferable" gives me pause because without context this could probably be interpreted as "well, I asked Facebook if I could use the picture so it's fine." Which, with this wording, Facebook could do that and it would just be a "dick move."

Unfortunately, dick moves aren't really actionable.

A couple of real-life examples:

Photo: Amelia Perrin

Photo: Amelia Perrin

Late last year Amelia enjoyed a weird week as "the catfish girl"; basically, people were reposting her images without her permission, on their own Instagram accounts and modelling profiles, in order to... uh, actually, I don't understand what the end goal was here. It gets worse: her story appeared in massive publications like the Metro and the Mail (hey! these guys again!), again without her permission or consent.

None of those accounts got shut down by Instagram; in most cases, Amelia just yelled at the people behind the accounts enough that they just figured it wasn't worth the effort. This isn't a great outcome. Meanwhile, those articles are very much still up.

Photo: Robert McKeever

Photo: Robert McKeever

Then there's the story of Richard Prince, who's being sued for the most hilariously outlandish example of copyright infringement, like, this is something you'd put in a book and it would be edited out almost immediately. Look at the balls on this guy. That's other people's photos, other professional photographers' photos, screenshotted and sold for thousands of dollars.

There's an argument to be made here about appropriative art, especially given he's been doing this since the 70s, but this is my blog and I say Richard Prince is a giant, gaping asshole.

The line of reasoning goes -- and yeah, I've heard this from people trying to use my images with neither payment nor even a credit -- that if an image or whatever piece of content is on the internet, it's fine to use. I used to work for someone who thought pictures from Google Images was copyright-free.

PRO TIP: it's not.

If Richard Prince can get paid thousands of dollars for your Instagram pictures, and if someone can steal Amelia's selfies for some reason, you can definitely choose how and where your content gets used. If someone wants to use your photos, no matter where you put them up, you're well within your rights to ask to be paid for their usage.

Similarly, if you find them being used without your permission, you're well within your rights to ask that they be taken down, or you can go the patented "Jamie Drew, Professional Photographer, Part-Time Jackass" route and just send them an invoice. Here's the AOP's licensing calculator. Go nuts.