The whole Internet is abuzz today with the news that Instagram, after its acquisition by Facebook, plans to update its Terms of Service to allow it to use photos uploaded to its service in advertising. Despite the widespread admonition that “if you’re not paying for it, you’re the product,” people are upset to think that Instagram will now be using their pictures commercially without asking permission or providing compensation.
I have no idea how this will work, and I’m once again glad that I don’t use Instagram… but I know a lot of people who do, and many of those people are celebrities to some degree.
Here’s what I’m wondering: if Kaley Cuoco uses Instagram to share a photo of her and Melissa Rauch doing something silly, does that mean that Instagram can take that photo and use it to advertise for something silly without compensating them for what becomes a use of their likeness for commercial purposes? I can see that being a pretty serious shitstorm if it happens.
See below the fold for my reasons why.
Some or all of the Service may be supported by advertising revenue. To help us deliver interesting paid or sponsored content or promotions, 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.
When using a photo in advertising, there are (at least) two major things that a company has to worry about: (1) who owns the copyright in the photo, and (2) obtaining a release of the publicity rights of any people depicted in the photo. The copyright in the photo is, generally speaking, owned by the photographer. The publicity rights are owned by the people depicted.
Paragraph 4 warrants that the user’s posting of the photo of, say, Wil Wheaton, doesn’t violate Wil’s rights of publicity. I believe that’s true: the user isn’t using the photo in a commercial manner by using the Instagram service, so it wouldn’t implicate Wil’s right of publicity.
There’s probably some grey area regarding whether “use of your Content on the Service” now includes including content in ads, but if I were Instagram, I wouldn’t want to rely on that.