Terms and Conditions DO Apply – Instagram for Photojournalists

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Award-winning photographer Yunghi Kim has been warning photographers of posting on Instagram for about a decade now. We should have listened to her. 

Over the years the photo-sharing site’s terms and conditions have evolved as corporate expectations change. 

Several years ago, the Facebook-owned Instagram changed their terms and conditions to include specifics on their advertising and sponsorship policies. It was poorly worded and immediately misunderstood (probably because even then people didn’t trust Zuckerberg’s Facebook). People assumed that the working meant that Instagram could sell your images. It did not, but they saw a huge drop in their user base as many left the website, some never to return.

But just this week a new court ruling has come down and it’s not good for photographers. Specifically, it’s not good for photojournalists who share their work on Instagram. 

The tech-based news/clickbait site, mashable.com has long been known for grabbing people’s images and using them on their site without permission or paying (that’s based on personal experience) but back in 2016, they got into trouble for using an embedded photo in a list of female photojournalists. 

They refused to pay the photographers asking price and then just decided to embed the image from Instagram. The embedded photo has since been removed from the site, but a court case has been in the works for several years. Stephanie Sinclair V Ziff Davis & Mashable inc was found for the defendant. 

Judge Kimba Wood cited Instagrams terms and conditions that offer “fully paid and royalty-free, transferable, sub-licensable” rights to people who would like to share the images. (I recommend giving this article from TheVerge.com a read for the full story.)

While I think we’ve all known that social media has been used by news sites as a runaround of paying photographers for years now but these sites usually do not contact the photographer first. Now we have a court ruling certifying that websites can use our images in stories from Instagram as they want. (Never has there have been a better time to start aggressively watermarking your images)

The court ruling came down just this week so there’s no word yet if this will end up going to higher courts. 

Personally, this is my final straw with Instagram. Court rulings have decided the other way for Twitter due to their specific terms and conditions, so I will continue to use that site always with a watermark. 

As a photojournalist, I’ve never personally seen the benefit of Instagram. My images are not necessarily the things that get liked or commented on as they are usually of violent police actions or extremists. Like many of us, I’ve never once been contacted through the site for licensing or by an editor. On other social media sites, I’ve had very different experiences. Obviously there are many photojournalists who have large followings and see a benefit versus the risk of posting their images there but I do not.
One of the ways that I could see myself continuing posting to the site is Instagram giving us an option whether or not we would like to allow our posts to be embedded. If a new site grabs the image and uses it as a header or takes it out of the embed, the terms and conditions are null and void and it becomes copyright infringement again. (I am not a copyright attorney this is just my personal experience as a plaintiff in copyright lawsuits). 

I’m still not deleting everything from Instagram or even making my content private (for now). But I will be leaving this image as the most recent post. If you would like to make a statement to Instagram to change its terms and conditions, please steal this image and post it on your Instagram page. As photographers are this social media site’s bread and butter, maybe just maybe if enough of us make a statement about this they’ll give us the options to keep our images under our own control.

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