Understanding Instagram’s terms of service

Topic: General Legal, Social Media
Time Investment: 5 Minutes
Suggested Product:  BizRevamp®


Copyright, infringement, fair use… What do these terms mean? To budding photographers who rely on digital media to distribute their products, the maze of copyright law can be downright confusing and at least a bit disconcerting. What can a social media site do with the photographs that you place on the web? Do you have to register a copyright for it to be valid? What exactly is a copyright?

This blog post will attempt to answer a few of these questions and give you the information necessary for you to better protect your intellectual property in the wild west world of the world wide web.


Crash Copyright Course

For starters, it is important to spell out what copyright means.  A copyright is nothing more than a government recognized right to utilize created works for a specified period of time. There is no special magic about it. You do not have to apply to the government to obtain a copyright. Instead, your original work is protected the moment it is created and fixed in a tangible form. Thus, for photographers, when you take the image of a particular photograph, your original work is copyrighted at that point.

With that being said, even though your work is copyrighted at the moment of creation, it does not mean that you are unable to better protect your work through the use of registration. Registration is the process by which an original work is actually registered with the United States Copyright Office. This process significantly strengthens the legal protections that are available to you for a work that you create. By registering a copyright with the United States Copyright office, you create a public record of the existence of your work and the copyright associated with it. This makes prosecuting potential infringement cases much easier for you as you have a demonstrative way to prove that your work is your own. More specifically, works that are registered within five years of publication constitute prima facie evidence in court. Finally, a registered work may be eligible for statutory damages and attorney’s fees that are not available for not-registered works. Simply put, while your work is copyrighted without registration, you can strengthen your protection by registering your intellectual property.

With the basics of copyright law behind us, it is important to look specifically at how copyright law interacts with digital media. Copyright infringement abounds on the internet. The nature of easily shared and downloaded data and the vast interconnectivity that the internet affords, makes it quite easy for a potential infringer to obtain your work and distribute it widely around the web. Indeed, in the vast majority of circumstances, you may not even be aware that infringement has taken place. Unless the infringer usurps the image as his/her own, you would have a very difficult time even knowing that your work has been taken.


So how does this impact social media?

Things are made even more complicated when social media sites, many of which are relied upon by the modern photographer, insert terms of service in their fine print which allow them to utilize your works for their advertising purposes or for other ways to take your work and make a profit.

The popular site Instagram recently found itself in a wave of controversy over new terms of service terms that would enable the site to utilize your work for its own goals and needs.

Specifically, the terms indicate:

“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: http://instagram.com/legal/privacy/.” “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. If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata) on your behalf… You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.”

Some people might ask, how is this legal? Isn’t this copyright infringement? The short answer to this is “no.” By utilizing the service, you are granting a license to the social media site to use your work.  A license is given by the owner of a copyright and gives the license holder a right to reproduce, sell, or distribute work in accordance with the licensing agreement.  In this case, you, the photographer would be giving Instagram a license to use your “content” (i.e. photos) that are posted on or through Instagram.

“Our main goal is to avoid things likes advertising banners you see in other apps that would hurt the Instagram user experience,” wrote Instagram co-founder Kevin Systrom in a blog post Tuesday Dec 18th, 2012.  The problem is that there seems to be no real resolution as to how Instagram is going to gain income flow without using advertising banners or charging users for their use of the platform. Without a change in the TOS, photographer’s pictures are subject to a license that the photographer agrees to by using the service.  So…how do we protect ourselves with this?


How to protect your images

So what is a photographer to do when faced with an increasing number of sites that utilize similar terms? Giving up the internet is surely not an answer. Nor is posting a “copyright notice” as was popular on Facebook a while back going to protect your work. However, there are practical steps that you can take to protect your work while still utilizing these popular services.

  • Embed digital watermarks on top of your images (Tutorial: How to Create Watermark Brush in Photoshop), or include only lower resolution images that do not fully give away the best content for free.
  • Think long and hard before you release or post your best work on social media sites or other sites with expansive terms of service.
  • Be sure to actually read the terms of service of the sites that you use, and if you have any question about the site’s ability to take your images, do not post your most precious images on those sites without a watermark.
  • Publish your best works on your own websites, and include links to your own website on the various social media networks. In other words, use social media to direct viewers back to your own site, where you can show off your best work without being subject to terms of service of a social media site.
  • Consider registering your most precious images with the United States Copyright Office.
  • On your own site, consider including protections that disable “right-clicking”, downloading, or copying your images. While not foolproof, you will discourage the vast majority of potential infingers who may not be technically savvy enough to overcome these simple protections.
  • Consider digitally embedding copyright information into the file itself.  This can be done in the processing program of choice and will sometimes work to prevent labs from printing these files outside the guidelines embedded in the photograph’s data.

Steps for Photoshop:

#1 Open Picture

#2 File > File Info

#3 Enter Info

#4 Click OK

The internet provides a powerful voice to both new and established photographers. However, this media is not without risk. Be sure to tread carefully in the brave new world that the digital age has brought, and you will better be able to protect your intellectual property and expand your business.




What can we do now?

Instagram has responded with this response stating that they “….respect that there are creative artists and hobbyists alike that pour their heart into creating beautiful photos, and we respect that your photos are your photos. Period.”  The true test will be to see if the terms are actually changed.

Should we boycott? Maybe! Copyright infringement is a very serious issue that happens daily. Someone recently posted on my facebook page that by uploading to the internet there was a silent agreement that anyone can use my photos. WRONG. Reread the copyright information above. But it is also my responsibility to protect myself and let Instagram (and other social media platforms) know that this is not okay.  In this digital age photographers, designers, and other digital based producers are fighting stealing (screen shots, torrent sites, right click-saving), modification, copying and pasting as own.  We shouldn’t have to roll over and let another avenue potentially infringe upon our livelihood.  If you’re serious about your career, then you should be serious about being informed and doing something about it.

Hopefully this response isn’t a way to pacify the viral posts and lead people to believe they are protected when they aren’t.  You can take all the steps above to protect yourself, get fully educated instead of hopping on the hype of viral status posts without any research and commit to providing feedback to Instagram.  Stay tuned for future changes as they will be reported here!


As a bonus..Here’s some tips on using Instagram for marketing:

Instagram is one of the leading social media platforms in existence next to Pinterest and Facebook (who, ironically, have similar terms of service).  Here are a few simple ways to utilize Instagram to engage your audience. As always use the safety nets that are outlined above!

  • Post pictures that “humanize” you for your audience to get to know you as a person
  • Use hashtags to group your pictures together and make searching easier
  • Screenshot your own work and blog to direct people from IG to the appropriate area
  • Push pictures from it to your Facebook Business page


For the record, I love instagram, as long as my stuff is protected! Follow me @rachelbrenke!


The follow-up post can be found here.