And that’s the problem we’re going to address, because failing to read those terms and blindly agreeing to them can leave you open to a world of hurt. Now while this is mainly applicable to artists, content creators and those who generate revenue through their Instagram posts, we really think everyone who uses the platform should read this. Especially because it does pertain to you all, as well.
Now, let’s make something crystal clear before we delve into Instagram’s TOS — these user agreements aren’t formalities, they’re legally binding contracts known as a “contract of adhesion” by lawyers. That’s when one party sets the terms and the agreeing party has no wiggle room for negotiating the terms — you either take it or leave. So when you “look” at Instagram’s Terms of Service you’ll probably do one of a few things:
A) Not read a single lick, skip to the end and sign.
B) Rationalize the fact that over 500 million people use it and they’ve all signed it, therefore it must be safe to do so.
C) Think to yourself, “no one would use it if the terms were that bad, so I’m fine.”
Most clauses in these TOS are harmless, unless they were to be exploited by someone looking to do some nefarious shit like Richard Prince, but we’ll get into that later.
Most of Instagram’s Terms of Service is pretty standard and fair — you agree not to generally be a dick, so no harassing others, jacking their code or other things that keep society afloat. It’s the licensing that we’re going to key in on, specifically the following paragraph:
When it’s all said and done, what you’re agreeing to is a bit sneaky.
The first sentence states that Instagram doesn’t claim ownership of any content that you post using the platform, so you still own your photos… as you’d expect. The second sentence however, tells a wee bit of a scary story. By agreeing to their TOS, you’re giving Instagram a “non-exclusive” license to your photos and they don’t have to pay you a dime for it. It’s also royalty free, so they won’t have to pay you in the future, and since the license is transferable they’ll be able to grant the license to anyone they want. Oh, and that sub-license? This means that Instagram can sell a sub-license to another party and they don’t have to pay you for it either, because you agreed that it’s “royalty-free.”
The three main categories of third party are:
A) Affiliates: Companies affiliated with Instagram who need to receive your data in order for the platform to work. This is pretty standard.
B) Service Providers: Outside companies needed to make Instagram work, including domain servers and other reasonable and necessary companies.
C) Third-Party Advertisers: The dudes who look at cookies on your computer to map out what sites you’ve already visited so they can target you with certain advertisements.
Part C is how Instagram makes money. They provide a free service and sell some of your information to advertisers. Naturally that can pose some privacy concerns, which Instagram recognized and attempted to assuage your 1984 fears by saying the following:
“We may remove parts of data that can identify you and share anonymized data with other parties. We may also combine your information with other information in a way that it is no longer associated with you and share that aggregated information.”
All good, right? I mean, they’re only sharing anonymized and/or aggregated data. But here’s the thing, they never really said that that’s what they’re doing. The operative word in the above statement is “may.”
“We may remove parts of data,” and “We may also combine your information” means that they might, but don’t have to. It’s not like they said “we will remove parts of data” or “we will also combine your information.” They’re allowed to aggregate your data, but have no contractual obligation to do so and it’s likely impossible to figure out whether or not Instagram actually anonymizes their data in such a way. So, under the TOS that you signed, Instagram could decide to sell your personal information to advertisers and would be within their legal right to do so and you’d never know about it. This article isn’t supposed to scare you, but we just want you to know what you’re agreeing to. I mean, everyone at VP uses the platform so we’ll all involved here.
Anyway, let’s just break down one more part of their TOS under “General Conditions:”
“You can deactivate your Instagram account by logging into the Service and completing the form available here: https://instagram.com/accounts/remove/request/. If we terminate your access to the Service or you use the form detailed above to deactivate your account, your photos, comments, likes, friendships, and all other data will no longer be accessible through your account (e.g., users will not be able to navigate to your username and view your photos), but those materials and data may persist and appear within the Service [emphasis ours] (e.g., if your Content has been reshared by others).”
Key in on the “resharing” bit. Resharing also applies to Instagram posts that have been embedded offsite. When someone embeds your post elsewhere, you may not be able to take it down. Generally, a deleted photo will stop appearing on the third-party site that it has been embedded in, but Instagram’s TOS allows them to keep sharing these photos even after they’re deleted.
As mentioned in the beginning of this article, creatives are at most risk here because their work instantly becomes co-owned by Instagram the second it’s posted. Not only do you have to worry about people stealing your art and posting it without permission, but you have to worry about Instagram potentially sub-licensing your designs, illustrations or whatever without you ever getting compensated or credited. Hell, they can take a picture of your face and do the same thing, so just keep that in mind when posting.
Look, we’re not saying that Instagram put these articles in place to with nefarious intent. In fact, plenty of the clauses are put in place just so the service can work properly, and content can be shared appropriately. While some jackass from Instagram could take your photos and sell them, the likelihood of that happening is pretty slim. What we suggest is signing and/or watermarking your photos so that assholes like Richard Prince can’t print out your work, hang it in a gallery and sell it. The problem with going after someone like this, who has been “rephotographing” since the ’70s, is that there’s a real grey area with regards to fair use. Prince has been in court multiple times and won because of fair use, so just keep these kinds of things in mind.
Remember, “Once you have shared User Content or made it public, that User Content may be re-shared by others.” It’s not something that Instagram will take advantage of, but others might. Don’t be scared, be smart. If you’re an artist posting work you really should be signing it or something.