Joined on Nov 29, 2011


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On article Instagram responds to clamor around TOS changes (77 comments in total)

This issue does not address the question of model releases. When we post images of people on instagram and facebook, we do so under the assumption that the images are only being posted for personal usage...sharing with others, and not for commercial usage.

If facebook uses any image of people for promotional purposes, they are doing so without model releases.

The facebook/instagram terms of service do not require that users have model releases from all persons whose likenesses are posted on those services. They cannot absolve themselves of the liability, or transfer the responsibility for releases onto the persons who posted the pictures for non commercial use. The user(photographer) owns the copyright to the image but if the person in the photo has not signed a release neither facebook/Instagram nor the user has the right to assume or grant permission for the use of their likeness for commercial purposes.

Link | Posted on Dec 19, 2012 at 07:04 UTC as 31st comment | 2 replies
On article Instagram responds to clamor around TOS changes (77 comments in total)
In reply to:

Najinsky: Storm meet teacup.

Instagram allows you to share your images with others. That costs money; servers, storage, bandwidth, people. Money doesn't magically appear where needed and has to be raised.

In raising money they want to showcase their product, which incorporates your images and the community surrounding them.

It's really easy.

What's really hard it making wording to describe it to the satisfaction of the litigious hoards and conspiracy theorists. And with good reason, because when a business get granted a right, whether intentionally or by accident, history tells us it may one day suit it to exploit that right to the max.

The fees they would have to pay for images to use in their ads and promotions would be an insignificant amount in proportion to their other operating expenses and earnings.

Other companies that have much smaller earnings and tighter profit margins pay substantial amounts for photography. The photography aspect is just a small portion of their advertising costs.

Look at the numbers for 2011:

Facebook-3.71 billion in sales/revenue
1 billion net income

Canon-45 Billion in net sales
4.8 billion net income (pretax)

Epson-11.7 billion in sales
123 million in net income

When facebook purchased Instagram , Instagram had 13 employees. Its operating expenses are practically nonexistant compared to Canon (197,000 employees), Epson (80,000 employees) and even the parent company facebook, which only employs some 3000 employees.

facebook/Instagram can afford to pay for the photos they use in their ads.

Link | Posted on Dec 19, 2012 at 06:50 UTC
On article Instagram responds to clamor around TOS changes (77 comments in total)
In reply to:

Photomonkey: Kind of fun to watch people get outraged about TOS on a free service. Also fun to see business people try to figure out how to make money with their free service without enraging the users.

They provide the platform but the users provide the actual content that makes the platform interesting to people. Facebook and Instagram do not create their own content, we do it for them.

They sell the information they gather on us to advertisers who use it to advertise to a target demographic. This is a more efficient and cost effective method of advertising.

case in point: On Pinterest I created a board on Mid Century Modern furniture. Almost immediately I start seeing ads for Mid Century Modern Furniture on facebook, Yahoo, just about any site I go to that has ads. The information we provide them is a valuable commodity to advertisers.

So we may not have to pay for those services, but we give them something valuable in exchange. Yahoo, fb and Google have made billions this way, as did TV and radio for many decades before the web. They don't need to claim usage rights to get a fair exchange for the service they provide.

Link | Posted on Dec 19, 2012 at 06:00 UTC
On article Instagram responds to clamor around TOS changes (77 comments in total)

It looks like we got their attention!

But we have yet to see how Instagrams revised terms play out. Will they quell the public uproar? Or will they just try to introduce more ambiguous wording that leaves us scratching our heads?

I'm afraid however the the erosion of user intellectual property rights will be like the rise in gas prices: up a dollar, the public complains, down seventy five sents, the public feels relief, then up a dollar...after a while gas hits $6 a gallon we'll be happy to see the price drop to $5.25!!

Likewise these "social networking" ,or digital image display sites may announce unacceptable terms , then, in response to user complaints, revise them to make it appear that they have backed off, when in fact, they have advanced their encroachment on IP rights.

We have to be diligent about these changes and stand by a Zero Tolerance policy. In fact we should demand they rescind all usage claims other than what is needed to display content as the users intended.

Link | Posted on Dec 19, 2012 at 05:25 UTC as 35th comment
In reply to:

chiumeister: Just watermark everything you post on Instagram and other sites.

Watermarking is like branding your beautiful wife's face so other men won't look at her.

Link | Posted on Dec 18, 2012 at 22:32 UTC
In reply to:

whyamihere: I'm thoroughly enjoying the public freakout now that the legal language that has represented this service (and others) is being phrased in terms that normal people can understand.

Since it's part of my job to read the complete ToS for many apps and services, none of this is surprising at all to me.

One of these days, you'll all learn to read the agreements instead of hastily clicking the 'I Agree' or 'Ok' button. In this case, any service that offers to relocate your data for ease of access reserves the right to use, change, or delete your data. It's still yours, but you don't have as much control over what happens to it once that data hits their servers without their consent. That's how it works, and that's how it has always worked.

Most individuals do not understand copyrights and usage agreement. They don't realize that photographers can grant all kinds of usage agreements from very specifically defined restrictive single use agreements to unlimited agreements that allow the client to publish anywhere with no time limitation.

Even the unlimited usage agreement does not normally grant the client the right to sell or relicense the image to a third party.

The typical ToS agreement goes above and beyond what is required by the service to publish and archive the content. They claim the right to relicense the content but to what end? Why else would they need that right other than to acquire free access to content that they can relicense for profit?

Anyone who has ever had to write a usage contract should be able to understand the terms in ToS contracts..if they would only take the time to read them.

Link | Posted on Dec 18, 2012 at 22:27 UTC
In reply to:

Peter K Burian: It amazes me that a company like this would have the nerve to try this. Granted, 95% of the photos are snapshots but that is not the point.

Good point. The quality of the images does not alter the matter of ownership and copyright. If we allow this to slide, then we are opening the door to more aggregious rights grabs.

Still, I might say that I have seen some very good...and marketable, content posted on other sites that are subject to the same terms.

Link | Posted on Dec 18, 2012 at 21:18 UTC

When pressed for an explaination, many of the services claim they need the right to publish the image in order to achieve the normal operation of the site.

I've been on four sides of the image usage relationship: photo lab printer, copy technician, photo buyer for a publication and as the photographer and copyright holder of the image.

As a printer and copy tech. all I needed was proof of permission to reproduce the image. I did not want to be party to unauthorized reproduction.

As a photo buyer, usage agreements clearly defined how the images would be used, number of imprints and for how long. Payment was made accordingly.

facebook and friends do not need unlimited usage in order to post the content in the manner the user intended. All that is needed is proof the user has permission to use and publish the content. The do not need unlimited usage rights to protect themselves from liability.They just want free access to content they can sell for profit.

Link | Posted on Dec 18, 2012 at 21:02 UTC as 16th comment
In reply to:

frankmv: Never opened an account with Instagram...and now I never will. Further, I've deleted the app from my iPhone. I'll take a much harder look at Flickr and other similar social media (read "sharing") sites. I may just swear off them all...

@ Franka T L...You might want to take another look at filckr's ToS. Saying they do not claim owneship of the copyright is not the same thing as not claiming unrestricted usage of the image.

Many sites make that claim, but effectively claim all the rights that a copyright provides, except exclusivity.

There is another term for what they claim: "unlimited usage" Unlimited usage does not transfer the copyright to the buyer , it just allows them to use it in any way, for as long as they want, including reselling the image.

But even with unlimited usage, the photographer still retains the right to license or sell the image to other parties. The photographer still retains ownership, but allows the other party to relicense or use the image in a manner outside of what is required for the operation of the site.

What these ToS agreements are claiming is unlimited usage, but not ownership of the copyright. But for all intents and purposes, they own the image.

Link | Posted on Dec 18, 2012 at 20:36 UTC
In reply to:

xlynx9: Most online services have similar clauses. They're just to allow for screenshots of the site/app to be used in promotional material, magazines etc.

I make a portion of my photography income by selling the usage rights of my images to be used in promotional material, magazines, etc.

I would be happy if facebook used one of my images in their promotions, as long as they pay the appropriate usage fee for the type and circulation size. Facebook is a business and they should pay for any images they use for the promotion of their business like any other busienss would.

Link | Posted on Dec 18, 2012 at 20:21 UTC
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