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#Law and iPhone Photography: Instagram and Copyright

October 1, 2011

Copyrights generally belong to creators. Artists, writers, sculptors and architects automatically own the copyright to the works they create. The same is true of photographers – even iPhone photographers.

Instagram is an iPhone app that allows users to “choose a filter to transform the look and feel” of their photo, and to share the photo on the internet. Some of the resulting images can be very cool.

All 3 images via exoskeletoncabaret on Flickr under Creative Commons license.

But when you snap a photo, then allow Instagram to alter it, do you still own the copyright? Copyright protects the rights of the individual or entity that creates a work. When you took the picture, you created it. However, when Instagram processes its filter, it is playing a role in the creation, right? Arguably, it is a much larger role than that of Photoshop or other editing software, because those programs allow users to control the end result with seemingly endless variables. Instagram, by contrast, applies a set filter.

Thankfully, the folks at Instagram have crafted terms of service to address this [potential] problem.

Proprietary Rights in Content on Instagram.
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. [Emphasis added]

Whew! Here I thought there might be a copyright issue. Boy was I wrong. But there is some more text there.

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. [Emphasis added]

So, unless you set your photos to “private,” when you share them using Instagram, Instagram can re-use them in any media they want. They can also modify them. While you retain the copyright, Instagram gets the right to exploit your work as they see fit. Well, at least they can’t sell your work or plaster it on advertising, right? Wrong.

Some of the Instagram Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you. [Emphasis added]

That said, the service is free. It performs a pretty cool function and asks for relatively little in return.

If you are not paying for it, you're not the customer, you're the product being sold

Moreover, these terms of service do not foreclose your right to exploit your own photos commercially, even after Instagram has altered them. Nor do they allow Instagram to sell your photos to outside advertisers (at least the way I read them).

The service also presents a unique crowdsourcing opportunity for advertisers. According to Mashable, Designer Rebecca Minkoff plans to use user photos posted on Instagram in her next ad. Fans are asked to snap pictures of their favorite Minkoff pieces, and designate their entries with the hashtag #RebeccaMinkoff.

The Mashable article makes no mention of payment, and there likely is none in this case. In the future, though, there is nothing stopping a iPhone photog from using Instagram to make her photo more marketable. There is nothing stopping her from selling it for advertising or other uses – so long as she is not trying to sell it to Instagram (they can use it for free).

UPDATE: 12/18/2012: Instagram has updated its terms of service. You should all read the newest TOS, effective January 16, 2013.

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15 Comments leave one →
  1. October 12, 2011 11:43 am

    Sorry if I am a little slow to understand.. Can I take my Instagram photos and sell them or use them for commercial purposes? Can I sell the prints, put them on cards and sell the stock?

    Thanks

    Jenna

    • October 12, 2011 7:22 pm

      Sorry for any confusion! You can absolutely use, sell, and license your work. This is in spite of the fact that instagram had a hand in its creation. The rub though, is that instagram can too, to a point.

      [Not legal advice]

  2. Aaron permalink
    July 24, 2012 1:48 pm

    Can I use some instagram photos in a powerpoint if I state where they came from?

    • July 24, 2012 2:08 pm

      That would depend on the copyright of the photographer. Without license from the photographer, even a non-commercial use is potentially infringing. If you’d like to be sure, contact an attorney.

  3. November 23, 2012 2:28 am

    If I were to imprint (c) [Insert Username here] onto each photo without using an Instagram filter? I may have just beat the system. Since I have stated full copyright to myself and Instagram had no hand in helping create the photo.

    • November 23, 2012 2:03 pm

      Unfortunately, I do not think that effectively skirts the system. Stating the copyright changes nothing. You always held the full copyright. You just granted Instagram a right to use it. Even with your notice attached, you’ve still granted that right.

      • November 23, 2012 4:55 pm

        Even if you have watermarked a copyright? Say for example: http://instagram.com/p/SXWCH6IFye/ Instagram is still granted rights to distribute the picture for commercial purposes, but with a watermark across the picture I am on some ways deterring them from doing so.

      • November 23, 2012 4:58 pm

        I cannot give you legal advice, but I can tell you that watermark is definitely a deterrent. Technically, though, I think the Terms of Service last time I reviewed them (ages ago) would still give them the rights discussed above. They’d just have to use a watermarked photo (the deterrent).

      • November 25, 2012 11:57 am

        Thanks for the responses

  4. Hannah permalink
    January 21, 2014 4:24 pm

    If I take a screen shot of a video posted on a television show that displays their logo and post it to Instagram…is that a copyright violation to the show?

    • Hannah permalink
      January 21, 2014 4:24 pm

      Note that the video is sharing enabled.

  5. FunnyLittleThing permalink
    May 23, 2014 1:59 am

    Maybe it’s a stupid question, but… Is it allowed to use fashion brands name on instagram pictures? What in case they do not show anything from the brand? Thank you!

  6. November 14, 2014 11:03 am

    Thank you for such a clear article. It made very interesting reading!

  7. January 21, 2015 3:16 pm

    Can i use other peoples instagram pictures on my blog. Like Paris Hilton’s instagram pictures for example can i use those in a blog?

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