The creative community is comprised not just of professional artists, creators and innovators, but of anyone who creates, experiences or shares work in a way that supports creativity. As we live more of our lives online, even those who do not create art for a living occasionally get a taste of the struggles professional creators face. Indie artists and innovators have long struggled with the problem of overreaching contracts, which as freelancers, they often feel forced to accept “as is.” This week’s flap over Instagram’s proposed change to its terms of service gave Instagram users a taste of what it is like to be a professional creator in numerous ways. Not only did Instagram users express some of the same feelings of exploitation when they feared their work would be used and distributed by Instagram for commercial gain without their permission, but many also felt frustrated that their only option was to stop using a service they enjoy and rely on, rather than opt in or out of the proposed terms on a case-by-case basis. Instagram users spoke out, loudly. And Instagram responded… Or did they?
Overly Broad License
It is reasonable for sites that rely on user-generated content to take a license to content users upload to the site in order to enable the site to function and to improve services to users.
In responding to user complaints this week, Instagram declared:
“Instagram users own their content and Instagram does not claim any ownership rights over your photos. Nothing about this has changed. We 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.”
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.
Although the language claims to be a “limited” license, there is nothing limited about it:
- It grants Instagram every right a copyright owner has the ability to authorize under the Copyright Act.
- The license grant is not restricted to uses necessary to operate the site, promote the site or even related to the site. With the exception of private content, the content posted to Instagram is licensed to Instagram for any use – even uses wholly unrelated to the site. Instagram underscores this point by making clear that only private content will not be distributed outside the Instagram Services.
“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.”
Warranty and Indemnity the User Can’t Control
“ 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.” (emphasis added)
The terms of service also include an indemnity that obligates the user to cover “all royalties, fees, and any other monies owed by reason of Content you post on or through the Service.”
Since Instagram has such a broad right to modify the service as it wishes, including by commercializing a user’s photographs, it is easy to imagine that a photo posted for purely personal and non-commercial reasons, could ultimately end up resulting in a liability to the user should Instagram choose to commercialize it or use it in an unanticipated fashion.
These issues should be of as much concern to Instagram as they are to users of the service. And not just to maintain good consumer relations. While some may argue that a contract like this represents tough lawyering on the part of a corporate entity, which will give Instagram ultimate flexibility in how it runs and develops its business, I think quite to the contrary. The terms are so extreme and so one-sided, and the agreement is presented as a “take it or leave it” offer to users without the advice of counsel, that it is entirely possible courts or arbitrators would find the contract unenforceable. Since Instagram will never realistically be able to assert claims this extreme in any event, it should rethink the terms of service and seek the licenses and the remedies it actually needs to run its business and serve its customers. An extreme contract in this case, is essentially no contract.