When Time magazine photo editors were looking to illustrate the growing importance of mobile phones for their August “wireless” issue, they asked their readers to help. They invited readers to share photos on Instagram using the hashtag #Timewireless. In one month, they received 31,429 submissions, from more than 120 countries and all seven continents (yes, they even got some from Antarctica’s McMurdo Station). After combing through the submissions, the editors settled on 288 photos to form a collage for the cover of the mobile-specific issue.
Instagram makes it easy for publications to crowd-source amateur photos from around the world. News sites like the Huffington Post regularly use Instagram to provide “man on the street” opinions and insight into topics they are covering. During the aftermath of Mitt Romney’s “47%” gaff in September, HuffPo selected various tweets and Instagram photos to show how people reacted to the nominee’s statement.
Other publications look to Instagram (as well as Twitter and other social networks) to find breaking news visuals in areas where their staff and freelancers weren’t there to catch the scene. During the deadly Empire State Building shooting on August 24, 2012, Instagram users published photos of the crime scene before anyone else. Many mainstream publications used these Instagram photos in their coverage. The Village Voice’s website posted user @rinninscared’s photo of a victim on the sidewalk.
User @mr_mookie caused a firestorm of drama after a graphic photo he posted and paired with an insensitive remark went viral and was published by CNN, the New York Daily News and even made its way to the Associated Press Photo Wire. User @mr_mookie, whose real name is Muhammad Malik, claims to have never received any money for the photo.
Some non-news organizations use Instagram photos to help promote a cause or provide minute-by-minute updates during major events. When people took to the streets in September to protest for independence in Catalonia, Spain, the Catalan March Towards Independence organization created a website that collected Instagram and Twitter posts with relevant hashtags. The result was a page packed with photos of protesters in Barcelona and around Spain waving Catalan flags and showing other signs of rebellion.
Online news aggregate Breaking News has an Instagram account that reposts users’ photos, adding a retweet-esque arrow and attributing the photographer in the description. Their Instagram account, though relatively inactive now, has more than 55,000 followers. Breaking News General Manager Cory Bergman told the Poynter Institute earlier this year that no users have complained about having their content reposted.
While amateur photographers are often flattered by a publication’s use of their photo, professional photographers have to be wary of copyright and fair use issues in the digital age.
So what are a photographer’s rights on Instagram? I’m going to dissect the statements relevant to photographers’ photo rights in Instagram’s Proprietary Rights in Content. (Note: I am not a lawyer and I don’t even play one on TV. I am just a journalist with a communications law textbook and I’m trying to beak down Instagram’s extremely dense Terms of Service into readable, understandable text.)
“Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the Instagram Services.”
Don’t breathe a sigh of relief just yet. This first line in Instagram’s statement may be where most people stop reading, but if you move on to the next line, you might change your mind. Just because they don’t own your photo doesn’t mean that they can’t use it.
“By displaying or publishing ("posting") any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly ("private") will not be distributed outside the Instagram Services.”
Yes. That is one sentence. A 75-word sentence. Let’s pick this apart for a second. Basically, the photo may be yours, but Instagram can do whatever it wants with it. If you post a photo of your dog to Instagram, Instagram can use it however it wants. It can edit it, place text over it, or even throw it away. And if a company like Purina dog food wants your photo, Instagram can hypothetically give it to Purina and Purina can use it as long as they attribute your Instagram username. Now, that doesn’t mean that you can’t sell that photo to competitor Puppy Chow, but why would a company buy your photo if anyone can get it from Instagram? (Note that Instagram has not licensed any user photos to corporations without user consent, but it could if it wanted to.)
The only way to opt out of this content grab is to keep your settings “private.” However, this would undermine the very purpose of Instagram as a place to share your photos with strangers.
Many professional photographers who use Instagram take their own precautions by only sharing photos that are outtakes from shoots or behind the scenes observations. Rarely is Instagram the sole outlet for a professional photographer anyway, either commercially or artistically.
You represent and warrant that: (i) you own the Content posted by you on or through the Instagram Services or otherwise have the right to grant the license set forth in this section, (ii) the posting and use of your Content on or through the Instagram Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, and (iii) the posting of your Content on the Site does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the Instagram Services.
You cannot post images that are not your own and if you do, you are responsible, not Instagram. This also means that if someone posts your photo without your permission, Instagram is not responsible for your content. Though it is discouraged in Instagram’s community guidelines, many accounts will take photos from the Internet and other Instagram users and post them as their own. And as many photographers and bloggers have found out, it is extremely hard to get these photos removed. A victim of Insta-theft has to persuade the reposter to take down their image because Instagram does not claim any responsibility.
All this talk of copyright infringement is enough to make any professional photographer want to delete Instagram. But hold on a second. Instagram is a great networking tool for professionals and hobbyists alike. When reputable news outlets want to publish an Instagram user’s photo, they usually try to reach the user before resorting to Instagram attribution. (When Muhammad Malik’s photo of the Empire State Building shooting victim went viral, photo editors started contacting him.)
And if photographers are worried about content stealing, they can apply watermarks to photos before posting them to the social network. All users of Instagram, whether hobbyist or pro, should be familiar with their rights to their images. Because for professional photographers, the flattery and honor of publication does not pay the bills.
Lauren Crabbe, @lcrabbe, is a freelance technology writer and photographer, specializing in photography applications for iOS and Mac. Her love of photography brought her to San Francisco to study photojournalism at San Francisco State University where she learned to combine her photographic skills with her passion for storytelling. She has traveled the world with her camera--studying journalism in Denmark, visiting in-laws in Ireland, and sourcing coffee in Guatemala. You can find her biking around San Francisco, drinking a lot of coffee, and capturing her daily observations with her iPhone on whatever app she is testing that day.