You should always read very carefully the various terms of service associated with the social media networks in which you participate – particularly with respect to ownership of the material that you post and/or share on these sites. In other words, do you know who owns what you post?
Recently, one social media site’s public announcement highlighted this question in appalling clarity. On December 17, 2012, Instagram announced that it had the right to sell any photo that you took and uploaded using its service – in other words, to “commercialize” it. (SeeCNET’s article about the change in terms: Declan McCullagh, “Instagram says it now has the right to sell your photos,” CNET, Dec. 17, 2012.)
If you are unfamiliar with Instagram, it used to be a standalone company, but was recently acquired by Facebook and is used on Facebook to share customized photos with your networks.
Here’s the rub: the right to distribute (or not to) is actually an exclusive right set forth in the Copyright Act as being owned EXCLUSIVELY by the copyright owner. 17 U.S.C. §106. Not by a vendor who handles the distribution.
Unless the author has licensed its ability to redistribute an “original work of authorship fixed in a tangible medium of expression” (as an original photograph surely is) to another, any redistribution of a published work constitutes copyright infringement under 17 U.S.C. §501, and carries certain remedies and penalties depending on the context.
The public outcry in response to this notice was apparently widespread, as Instagram immediately appeared to retract this statement, and stated that users retain the copyrights in their original photographs even when posting them using Instagram’s tools. Declan McCullagh and Donna Tam, “Instagram apologizes to users: We won’t sell your photos,” CNET, Dec. 18, 2012; see also Instagram Blog, “Thank You and We’re Listening,” Dec. 18, 2012. Its restatement of the policy suggested that Instagram believed the hue and cry to have been solely based on a misunderstanding of the revised terms of use and privacy policies.
In this restatement, Instagram explained that ownership rights would not change as a result of this policy, and neither would any privacy settings users have already set. Current Version of Instagram’s Privacy Policy and Terms of Use, updated Dec. 18, 2012.
The Copyright Alliance points out that this explanation does not meant that Instagram cannot commercialize your images – in fact, the text that Instagram removed was merely a disclosure of the ways in which it “can” use your photos:
“Instagram has issued a statement saying that it has heard its customer’s complaints, is removing the clause that most offended its customers, and reverting to its old terms of use. But ironically, the clause that caused the outrage, and which Instagram says it has removed, was merely a disclosure and acknowledgment by the user of how Instagram could use a customer’s images. Removing that clause alone doesn’t change the license the user grants Instagram. Moreover, even if Instagram reverts to its current terms of service, those terms of use not only permit Instagram to commercialize user posted images in virtually unrestricted ways, they pass the responsibility for paying any royalties or fees owed for such commercialization on to the user who originally posted the works.” (emphasis added). Read the Copyright Alliance’s full article for more on this point, “Instagram Still Has the Right to Commercialize Your Work (or Why You Should Read Terms of Service Carefully),” Dec. 21, 2012.
The lesson to be learned here is to be proactive with all of your social media use – understand what Terms of Service apply to your use, and whether the company will be using your information in a way with which you are not comfortable. Review carefully to determine whether by using their site, you automatically grant the site a license to use your content (your text, pictures, video, whatever) without specific notice or obtaining your consent to that specific use.
And, try to stay on top of changes to these policies in case changes are made that further impose on your privacy or intellectual property rights. Many of these policies have a “these terms can be modified without prior notice” provision, but the sites may also host blogs that announce new features or changes to their services. You might want to subscribe to them (through RSS feeds or email) so that you are notified promptly of any advertised changes.
Here are links to some of the more commonly-used social media sites, and their relevant blogs (if available):
You might also be interested in posts from The Copyright Alliance(their article on Instagram is here) or the Electronic Frontier Foundation(their article on Instagram is here) generally, as they both cover issues like these on a regular basis.