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Computer geek patent attorney in Seattle, WA. This Tumblr supplements my Twitter feed (@DavidPSheldon), and includes more casual and/or off-topic content. It could look better, but I'm assuming you're reading this via an RSS reader or your dashboard, so looks don't matter.
Dec 18 '12

Instagram Won’t Be Putting Most of Your Photos in Ads — Here’s Why

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.

Wil Wheaton posed the question on Google Plus:

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.

I looked through the Instagram Terms of Use, and I don’t think that this is going to be a big problem. Instagram can likely use your photos of inanimate objects without asking permission, and could probably use your “selfies” because the Terms of Use are likely effective in granting a release of your own rights of publicity.  However, if Instagram starts using photos of people other than the users who uploaded them in ads, I think they might want to think twice about it. 

See below the fold for my reasons why.

Paragraph 2 of Instagram’s updated Terms of Use, which is the clause everyone is talking about, states:

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.

Here’s the thing: the Terms of Use appears to be effective in granting copyright licenses to Instagram, but does not appear to be effective in granting a release of the right of publicity.

Paragraph 1 of the Terms of Use states that the uploading user grants a license to Instagram to use the content:

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, except that you can control who can view certain of your Content and activities on the Service as described in the Service’s Privacy Policy, available here:

Paragraph 4 of the Terms of Use states that you warrant that you own the content you’re uploading, and that your posting of the content doesn’t violate any copyrights or publicity rights:

You represent and warrant that: (i) you own the Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in these Terms of Use; (ii) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service; and (iv) you have the legal right and capacity to enter into these Terms of Use in your jurisdiction.

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.  

However, if Instagram were to include the photo in an ad, that use would implicate Wil’s right of publicity.  Nothing in the Terms of Use states that the user has obtained a release with regard to these rights, or is transferring or licensing these rights to Instagram.  

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.