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back to article New Year's resolution: Don't use Instagram, it'll sell YOUR photos

Social network Instagram has provoked uproar among its latte-photographing users: it has changed its terms and conditions to grant itself licensing rights to sell all photographs taken by the app. The amendment in the Ts&Cs will come into effect from 16 January. The firm will not technically "own" the images but will be able to …

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Devil

If i upload something that i don't own

what happens when facebook sell it?

it's a funny old mess. i know it has been referred to as their suicide note, but i suspect that most people wont care.

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Devil

Re: If i upload something that i don't own

The case that's specifically interesting is what happens if I take a picture of someone, which Instagram then use to sell advertising? That's commercial use and I think at least very questionable. Of course it is probably you, not Instagram who are liable for this.

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Anonymous Coward

Re: If i upload something that i don't own

It raises an interesting point - is it going to be illegal to upload people's pictures to Instagram without permission? Before, you could make a case that they were personal. By extending this into the commercial sphere, you would seem to be doing something that is at least a tort.

I hope the lawyers get onto this quick, because I really don't like being photographed by strangers with the risk of ending up identified on farcebook without my even knowing I am there, and if this puts a stop to it so much the better.

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Re: If i upload something that i don't own

Indeed. Where's my model release form?

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Re: If i upload something that i don't own

"The case that's specifically interesting is what happens if I take a picture of someone, which Instagram then use to sell advertising?"

I assume the line "Instagram does not claim ownership of ... " is some kind of legalese that leaves you responsible for the image but they get to profit off it.

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Re: If i upload something that i don't own

I assume the line "Instagram does not claim ownership of ... " is some kind of legalese that leaves you responsible for the image but they get to profit off it.

Not quite, though they have covered their backside elsewhere

The terms leave them able to say Bakunin licensed us to use it for commercial purposes, and we did so in good faith, if there was no permission to use the likeness of the model, Bakunin should not have granted us the license

The not claiming ownership is basically clarifying that the rights to the work do not transfer. Largely because if they did, people would get very, very upset. The only real difference though, is that the former doesn't stop you re-using (and/or relicensing) the work elsewhere - for Instagram the only difference is they can't assume exclusivity

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Re: If i upload something that i don't own

"The case that's specifically interesting is what happens if I take a picture of someone, which Instagram then use to sell advertising?"

My first thought was of this infamous case from a few years back:-

http://www.theregister.co.uk/2007/09/24/creative_commons_deception/

Having re-read that article, it's not clear that the issue wasn't also one of copyright (the uploader to Flickr and the one who "granted" permission for reuse wasn't the photographer/owner). But the issue in question is that even if copyright permission *had* been legitimately granted by the owner, the ad agency probably still would have been able to be sued by the girl in the picture because they didn't have a model release.

"I assume the line "Instagram does not claim ownership of ... " is some kind of legalese that leaves you responsible for the image but they get to profit off it."

Trust me, I'm sure a competent lawyer will find some way to argue that, regardless of any attempt to weasel their way out of responsibility through pseudo-legalistic disclaimers, they're still on the hook. A particular motivator being the fact that Instagram/Facebook are the ones with all the money, not the random sod that uploaded it.

(Particularly as the affected person wasn't the one who agreed to such questionable terms and conditions?)

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Angel

Re: If i upload something that i don't own

>what happens when facebook sell it?

You're liable :P

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Re: If i upload something that i don't own

I couldn't agree more. My sister uploaded pics and a video of my baby pushing her new toy pram around the kitchen and I made her remove them. Now I'm not even on farcebook for this very reason - but how to police such things...???

You need an account to know about it, I only found out as the wife is on farcebook, but I don't let her upload pics of the kids, and the kids themselves are banned from the site.

Facebook/instagram, you're a shower of bastards.

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Re: If i upload something that i don't own

Banning the kids is a brilliant way to make them overbearingly interested in getting on Facebook at the first opportunity.

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Anonymous Coward

Lets give it to them right up the a*se

Set up a few fake accounts, upload copyrighted photos from as many famous photographers, swamp Instagram with thousands of these pictures.... Sit back and wait.....

Watch the shit hit the fan when Instagram gets bent over, claiming it wasn't their fault for using copyright photos...

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Anonymous Coward

Re: If i upload something that i don't own

Are you?

A contract under English law exists where there is a "meeting of minds". If I sell my holiday pictures to a picture agency (unlikely but bear with me) I am likely to get a document to sign saying what my rights and their rights are. But if it is the first time, the person sticking the document under my nose is going to say "Do you have a right to sell these pictures? Have you got model release forms for these naked ladies disporting under a waterfall? That villa in the background - did you have permission to take pictures on site?"

Instagram doesn't appear to be doing that. They are trying a CMA, but they are not doing any diligence to make sure their users are obeying the law. And they are doing the selling.

It isn't a defence against a charge of fencing stolen property to tell the police that you got the drug addict to sign a declaration that you didn't own the goods, you were just making money off flogging them. Who gets the higher sentence if caught - the petty thief or the professional fence?

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FAIL

Re: Lets give it to them right up the a*se

"Set up a few fake accounts, upload copyrighted photos from as many famous photographers, swamp Instagram with thousands of these pictures.... Sit back and wait....."

Sorry, that dog won't hunt. Instagram will claim safe harbor under the DMCA, as long as they take appropriate action on being notified of IP issues with the images involved.

How they're going to dodge the model release is more interesting and, frankly, quite frightening.

Isn't it about time to start the conversation about secondary privacy? You know, everything someone else knows about you is not necessarily available to the highest bidder. It's not just photos; how many people have handed out your email address(es) in the guise of "contact management?"

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Re: If i upload something that i don't own

That was what I was thinking when I first heard this. Some user uploads an image over which they don't have the rights; Instagram use it in an advertisement campaign; the rightsholder sues Instagram; Instagram in turn find out the user signed up with bogus credentials in the first place, and have no comeback against them.

If / when Instagram go back on this decision, you can bet this -- and not user power -- was the real reason.

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Re: If i upload something that i don't own

"The terms leave them able to say "Bakunin licensed us to use it for commercial purposes, and we did so in good faith, if there was no permission to use the likeness of the model, Bakunin should not have granted us the license" "

Is there an explicit indication that the agreement includes a model release, or is this just implied (or perceived to be implied by you).

Even if that was accepted that it did, and it was valid, there's a problem.

It's obvious that, as a service aimed at the general public, a significant proportion of people either (a) won't have read the agreement and be aware of what's in it, (b) might have read it, but won't have understood it and/or won't have understood the *implications* of what they were agreeing to and/or (c) won't care about the copyright status of any uploaded random crap anyway.

This is obvious to me, so it wouldn't be remotely plausible for Instagram (or Facebook)- billion dollar companies with presumably massive legal resources- to argue in court that it hadn't occurred to them.

Regardless of whether one could argue that the end users agreed to the terms and *should* have known what they were doing, it wouldn't change the fact that Instagram/Facebook were (I'm guessing) on the hook for any copyright violations or incorrect model releases when they would have known damn well in advance that it would happen.

IANAL, but I doubt Instagram/Facebook could simply wash their hands of responsibility if they weren't (at least) pre-screening and verifying material, regardless of that clause. (Anyone with an appropriate legal background care to confirm if this is correct or not?)

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Re: If i upload something that i don't own

@Michael

Is there an explicit indication that the agreement includes a model release, or is this just implied (or perceived to be implied by you).

By agreeing to give them the rights, you are saying that you have the rights to do so, so a model release is being implied (bearing in mind that a model release doesn't have to be a bit of paper - the paper just provides you with proof of what's important: that they consented to their likeness being used).

It's obvious that, as a service aimed at the general public, a significant proportion of people either (a) won't have read the agreement and be aware of what's in it, (b) might have read it, but won't have understood it and/or won't have understood the *implications* of what they were agreeing to and/or (c) won't care about the copyright status of any uploaded random crap anyway.

You could say the same about EULA's, the terms and conditions of your bank account or any other legalese document. As the user, you've confirmed that you've read and agreed, so the terms are binding (not actually that simple, but for a different outcome you'll likely need a day in court).

FB/Instagram wouldn't automatically be off the hook for copyright violations (especially if they couldn't produce a real person to point the finger at - i.e. the uploading user had used fake details), but they could potentially then take action against the user (dependant on finding him/her) for breach of contract. They'd certainly try to use it to reduce any damages awarded against them (we used the image in good faith your honor)

It's a risk that a lot of web-based companies take, to some extent. Look at Helium - if I upload someone elses work as my own and they then license it to a magazine you enter a similar sort of situation.

IANAL but I have studied law.

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Good!

Perhaps this will stem the tide of those nauseating hipster-wannabe crap quality photos which are supposedly suddenly of merit because they've been filtered.

The sooner they disappear, the better!

(As for those whinging, did you seriously expect Instagram to host all your shit for free forever? Seriously? Get real...)

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Joke

Internet Payback?

Take photos only of stuff no-one would want to use? Oh wait, that's what Instagram users already do...

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Anonymous Coward

Great... sign up for Instagram.. take a pic of the Apple logo....

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this made my day, i can put coat on and walk home now

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Happy

Better still - go minimalist _ just the leaf

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Narcissistic mugs using social networking ...

Deserve everything they get. Hipster nob heads the lot of em.

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Meh

I guessed this was coming after the ludicrous price that Instagram got bought for....

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Meh

Don't like? Don't use!

What deuce are they going to with a server filled with royalty-free images of peoples lunch?

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Pint

Re: Don't like? Don't use!

Virtual buffet.

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Coat

Re: What deuce are they going to with a server filled with royalty-free images of peoples lunch?

Instagram modified pictures often look sun-bleached so surely the obvious people to sell them to are kebab & take-away shops for their menus?

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Anonymous Coward

Whoever is making your office coffee needs to be retrained immediately. Coffee should NEVER look like tomato soup, even when served in an orange cup....

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WTF?

And what's that floating on the top? :/

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Alert

I suggest that said staff retraining needs to be implemented with a baseball bat, hammer, or other such blunt instrument. That's some shocking looking coffee. Even if you had the 'greasy spoon cafe' filter activated on your Instagram app at the time...

P.S. Where's my nice cup of tea icon!

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Bod

Re: copyrights

Licenced used and copyright ownership are different. Under the T&Cs you'll be giving them unlimited licence to use the photos even though you own the copyright, just as any photographer typically does when selling their work. Copyright covers making a copy without permission, but you've already granted them a copy by uploading the photo in the first place.

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WTF?

Re: copyright

By using this service you agree to assign .....

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Flame

Re: copyright

By using this service you agree to bend over anytime we want, and take it any way we give it to you.

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Thumb Up

haaaahhhhhaaaaaaa

the gangs running those social networking sites are turning into a bigger bunch of wankers than the bankers are....

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Re: haaaahhhhhaaaaaaa

Oswald Mosley is the only non-banker in the same league of wankers as bankers.

Social networking sites are tier two wankers -- professional wankers capable of outrageous wankiness, but incapable of utterly destroying the free world's economy.

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Happy

Re: haaaahhhhhaaaaaaa

Yeah, they are just wannabe-wankers.

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Anonymous Coward

Some users are threatening to quit the site

This is absolutely the best people can muster these days, when they're fucked - they THREATEN to quit. Oh, gimme my "dislike" button to broadcast my despair to the world...

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Bronze badge

Re: Some users are threatening to quit the site

It worked on classmates.com, myspace and google plus.

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Re: Some users are threatening to quit the site

I've been watching people bin their accounts on Twitter all day, the pro/semi-pro photographer community is abandoning ship en-masse.

All it takes is a tweet from Beiber or some other celeb livid about the possibility of Facebook harvesting their image for adverts and the shit will truly hit the fan.

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Anonymous Coward

Re: Some users are threatening to quit the site

who cares about [insert any figure] pro / semi pro, if you have a BILLION monkeys snapping away with their mobiles and digicams, day and night, round the globe?

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Zot
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Coat

Re: Some users are threatening to quit the site

Beiber's been throwing shit at fans for ages.

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Holmes

So. Here's what to do...

Backup your instagram images, delete them and then upload pictures of crap. Lilterally.

From fields, the pavement, your cat's litter tray...

#FillInstagramWithShit

No Shit? I think not, dear Watson!

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Anonymous Coward

Re: So. Here's what to do...

Or replace all your photos with copies with a watermark across them saying "Zuckerberg is a ginger haired twat"

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Anonymous Coward

"Cupcake pictures"

They need to be careful, a guy was just sent to prison for 10 years for spreading those on the Internet.

Or have I missed something?

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Hahahahahaaaaa haaaaaaaaaa

Delightful! Like people didnt see this coming from the off..!?

Just as Flickr have started pulling the stick out of their proverbial too. That said, Flickr could do without a megadump of hipster chintz (seems from what Ive seen to be the alt repository of choice), there are enough eyebleeding HDR images already as it is.

Flickr had all this in the palm of its hand for years, heres hoping for a resurgence.

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Facepalm

Sweet justice ahoy

When some freetard's "orphan" image is used in a global ad campaign and the freetard loses out on megabucks because it didn't read the small print.

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Never got the point

Having to look through someone else's holiday pictures is torture. Why on earth would I want an app which essentially amounts to same thing?

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Linux

"non-exclusive ... and royalty-free" -- Nice to see the big media types paying for content they want to use instead of stealing it (via T&Cs)

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Not just your photos

The terms say they can use your name and likeness in advertising. I suspect this is going to help Facebook's best bud Zoosk sell their paid communication service by providing them with a better class of fake online dating profiles.

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Anonymous Coward

This mug is copyrighted

I'm going to start wearing a lapel badge that says something like "No photographs without owners consent".

and in very, very small type "See terms and conditions etc.".

If they photoshop that out of the image I'll be on the phone to a lawyer.

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