Instagram: Am I Exposing My Art or Giving It Away?

Instagram: Am I Exposing My Art or Giving It Away?

We all know there are a lot of pages of ‘legalese’ that we are supposed to read before clicking that little box that says, “I agree to the terms and conditions,” before we download or use something like Instagram.  The question is: What exactly are we signing up for?

While Instagram “[does] not claim ownership” of your work, you do “grant [Instagram] a license to use it.1”  On its face, this sounds pretty good.  However, the license you grant Instagram is a LOT more than just allowing Instagram to post your work to your followers.  By clicking that box, you grant Instagram a license to your art (or “intellectual property”) in such a way that allows them to “host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works [from],” your art, without owing you a penny2.  On top of that, you give Instagram the right to ‘sub-license’ your work – meaning Instagram is allowed to make agreements with other people or companies to use your art in the same way you’ve let Instagram use it (or less)3.  There’s also nothing stopping Instagram from making money off of those agreements.   

What does this mean for that awesome photograph you’ve uploaded to Instagram?  It means that Instagram can sub-license it to “Cool Photos Inc.” and their offices all over the world for them to use, modify, display – without owing you anything – as long as they stay within the large amount of rights you’ve granted them.  It does not mean that “@PhotoStealer123” can upload it to their account.  That’s because the terms do not allow someone to post “anything that violates someone else’s rights, including intellectual property.”  So although Instagram policy allows other users to ‘use or share any of your User content that you make publicly available through Instagram,” it must be done “consistent with the…Terms of Use4.”

As I write this, it’s been less than a month since the Southern District of New York Courts have looked at two cases where a company used an Instagram user’s photograph to catch readers’ attention to their own articles.5  The courts said the photographers who were suing had enough of a claim against the companies to make it to the next phase of the lawsuit.  Right now, one court said, “it may be possible to read Instagram’s various terms and policies to grant a sublicense to embedders.7”  The next ruling will help decide whether or not others automatically get sub-licenses to embed your art in their posts.  

For now, it may be worth noting that the artists in both cases registered their work with the Copyright Office (otherwise, they couldn’t bring the suit!).  Also, being ‘public’ may help with exposure, but it may go towards allowing others to use your art.  Finally, you can end the license you grant Instagram at any time by “deleting your content or account,” so if you have something worth protecting – it may be worth deleting the post (if it’s already up), or seeking advice before posting it to Instagram and inadvertently granting companies a world-wide license!