Instagram and photographers rights

[josh.reichmann]

https://www.hollywoodreporter.com/thr-esq/court-rules-photographer-gave-up-licensing-rights-by-posting-instagram-1290170?fbclid=IwAR0jDAYVb43Ax5Vri8xFVv7UuJA4Rkh_zxl1RJgbYMSXJaY6jPo7fuTtB4U

[Slobodan Blagojevic]

Another source:

https://www.theverge.com/2020/4/14/21221078/stephanie-sinclair-mashable-instagram-embed-copyright-lawsuit-dismissed?utm_content=facebook&utm_medium=social&utm_source=facebook&utm_campaign=theverge.socialflow&fbclid=IwAR2dgAYGfSGeFkr93mjOHYcNm5sfTGgSs4Rfj8bSxuqKoe4qYhrv2LHxMlQ

Judge Kimba Wood noted that Instagram reserves a “fully paid and royalty-free, transferable, sub-licensable” right to photos on its service. If a photo is posted publicly, it also offers embedding as an option — which, in Wood’s estimation, effectively grants a sublicense to display the picture. “The user who initially uploaded the content has already granted Instagram the authority to sublicense the use of ‘public’ content to users who share it,” Wood wrote. That makes copyright questions moot.

[JoeKitchen]

I am reading this as if I post an image to instagram and another person would like to use the image, so long as they use the entire Instagram post, there is nothing I could do. 

This is pretty serious and ridiculous.  On top of that, my clients expect that they can use the images in their Instagram profile and other social media.  So if I do not use the image, but my client does and it is ultimately reused by someone else, who is liable in a suit? 

I retain my copyright, fully, with each and every shoot.  So if I sued someone using an image a client of mine posted, will my client ultimately be held liable?  Is there an indemnification clause in the terms of service that would transfer financial liability to the poster in a situation like this?  Would I essentially be suing my client at this point? 

Or would the suit just be thrown out since I have in my licensing agreement the right to post in social media accounts? 

[John Camp]

I am reading this as if I post an image to instagram and another person would like to use the image, so long as they use the entire Instagram post, there is nothing I could do. 

This is pretty serious and ridiculous.  On top of that, my clients expect that they can use the images in their Instagram profile and other social media.  So if I do not use the image, but my client does and it is ultimately reused by someone else, who is liable in a suit? 

I retain my copyright, fully, with each and every shoot.  So if I sued someone using an image a client of mine posted, will my client ultimately be held liable?  Is there an indemnification clause in the terms of service that would transfer financial liability to the poster in a situation like this?  Would I essentially be suing my client at this point? 

Or would the suit just be thrown out since I have in my licensing agreement the right to post in social media accounts?

Joe, it may be ridiculous, but if you go read the Instagram usage contract (and I have,) it's pretty clear -- if somebody posts a picture on Instagram, then Instagram can do anything it wants with it. The only option they give you is to cancel your account -- and even then, if you've shared the photo while the account was up, and that photo remains somewhere on Instagram, they can still use it, even if you've cancelled your account and removed the content of your account. Also, the Instagram agreement pretty much eliminates any possibility of suing them, since anyone who uses Instagram agrees that any disputes would go to arbitration, rather than to court.

If you hold copyright, and somebody else posts the photo, then Instagram wouldn't have the right to repost it...but if it did, it appears to me that it would be the poster who made an illegal use of the shot, since he wouldn't have the right to post the photo ***unless you agree to let him post it.*** Then, I think you would have effectively granted all of Instagram's rights, and you'd have no case if it were reused.

Here's the unusual problem with Instagram and other photo hosting sites: they're machine run. There's really no effective way for a client of yours to contact Instagram and tell them that in this case, he's not granting rights, because you own the copyright. I suppose he could send Facebook a letter, but their legal office would probably ignore it or simply tell him to either post it, or cancel his account, his choice.

As the judge said in her ruling, the photographer made her choice.

For most practical purposes, if you've granted the client the right to use the photo on social media, it's gone. That shouldn't really surprise you, because Instagram is owned by Facebook, the most greedy, grasping company on the face of the earth.

JC
 

[Jeremy Roussak]

Interesting.

I am reading this as if I post an image to instagram and another person would like to use the image, so long as they use the entire Instagram post, there is nothing I could do. 

It's not clear from the judgment that even that caveat ("use the entire Instagram post") is necessary to avoid liability, or that it's what Mashable in fact did.

The remainder of your questions seek to address matters not dealt with in the judgment. They would be addressed by contractual arrangements between you and your client.

The judgment reads well to me (although of course I'm an English, not an American, lawyer) and is a clear and concise interpretation of a short paragraph of one of Instagram's terms of service. The objections raised by the plaintiff smack to me of desperation: if I'd been acting for the defendant and that had been the best my opponent could come up with, I'd have been relishing the hearing.

Moral: don't commit what has been described as the commonest lie on the Internet: "I have read and agree to the terms and conditions".

Jeremy

[JoeKitchen]

Joe, it may be ridiculous, but if you go read the Instagram usage contract (and I have,) it's pretty clear -- if somebody posts a picture on Instagram, then Instagram can do anything it wants with it. The only option they give you is to cancel your account -- and even then, if you've shared the photo while the account was up, and that photo remains somewhere on Instagram, they can still use it, even if you've cancelled your account and removed the content of your account. Also, the Instagram agreement pretty much eliminates any possibility of suing them, since anyone who uses Instagram agrees that any disputes would go to arbitration, rather than to court.

If you hold copyright, and somebody else posts the photo, then Instagram wouldn't have the right to repost it...but if it did, it appears to me that it would be the poster who made an illegal use of the shot, since he wouldn't have the right to post the photo ***unless you agree to let him post it.*** Then, I think you would have effectively granted all of Instagram's rights, and you'd have no case if it were reused.

Here's the unusual problem with Instagram and other photo hosting sites: they're machine run. There's really no effective way for a client of yours to contact Instagram and tell them that in this case, he's not granting rights, because you own the copyright. I suppose he could send Facebook a letter, but their legal office would probably ignore it or simply tell him to either post it, or cancel his account, his choice.

As the judge said in her ruling, the photographer made her choice.

For most practical purposes, if you've granted the client the right to use the photo on social media, it's gone. That shouldn't really surprise you, because Instagram is owned by Facebook, the most greedy, grasping company on the face of the earth.

JC
 

I'm split on this argument.  I could see it going this way, but, depending on the argument used in court, you could say that the licensee could not possibly know all social media terms of service at the time of contract.  This would probably be predicated on using a generic "social media accounts" term and not naming any specifics.  Unfortunately though, I fear this would mean the client would be held financially liable and not a course one would want to go down unless you were okay with loosing that client. 

All of these T&Cs make it less and less attractive as a photographer to allow usage in social media without greatly raising the costs. 

[Chris Kern]

Moral: don't commit what has been described as the commonest lie on the Internet: "I have read and agree to the terms and conditions".

Especially since social media platforms routinely publish conditions of use which require their "customers"* to agree to license the content they post for the platforms' purposes.

———
*A misnomer.  If you sign up for an account that allows you to make submissions to a website, you more appropriately should think of yourself as the site's product, not its customer.

[JoeKitchen]

Another interesting situation I just thought of as well, lets say this image was used in an advertisement instead of a story.  (Just as an FYI, you have much less rights as a model if your likeness is used in a news worthy publication as opposed to an advert.)  And lets assume there was no model release obtained by the photographer at the shoot.  This is not uncommon for photographers to do if they never plan on licensing the images for any advertising use. 

Now assume the model in the image sues, who is liable?  Is it the end user, or Instagram, or the photographer, or (if it was closer to the scenario I describe where the image was used by a photograph's client) the photographer's client who posted it? 

It would be interesting to hear a modeling agency's take on this as well. 

[Rob C]

I never did join in the frenzy.

Social media is nonsense, and worse than that, decidedly dangerous. Think elections, lies, semi-literate readers and there you go: the perfect propaganda device in your pocket.

I may be mistaken, but I do not look upon LuLa as social media. I trust it doesn't assume the right to use photos posted here.

Rob

[Robert Roaldi]

I never did join in the frenzy.

Social media is nonsense, and worse than that, decidedly dangerous. Think elections, lies, semi-literate readers and there you go: the perfect propaganda device in your pocket.

I may be mistaken, but I do not look upon LuLa as social media. I trust it doesn't assume the right to use photos posted here.

Rob

I think that's the case. I don't remember any agreement with Lula that said anything like that, but it was so long ago. It certainly isn't set up in a similar manner to what I think of as social media.

At some point along the line, people started to mix business with the social in social media. It probably wasn't given enough thought. I can see using Facebook or others as a form of advertizing for your business, but I guess you have to be careful what you post. If it was a competitive marketplace, there might be other social media who set things up in a way that was more friendly to content creators, but I'm not aware of any. Remember when people thought that the interweb was going to "democratize" things, but if anything it has emboldened and strengthened monopolistic practices. I don't really see much objection to that though.

[KLaban]

I never did join in the frenzy.

Social media is nonsense, and worse than that, decidedly dangerous. Think elections, lies, semi-literate readers and there you go: the perfect propaganda device in your pocket.

I may be mistaken, but I do not look upon LuLa as social media. I trust it doesn't assume the right to use photos posted here.

Rob

No, the social media sites are places people go to bore other people with tales of their lives, post pics nobody wants to see and generally be rude to each other.

Oh wait...

;-)

[Slobodan Blagojevic]

... Oh wait...

 

Good one, Keith!

[John Camp]

Another interesting situation I just thought of as well, lets say this image was used in an advertisement instead of a story.  (Just as an FYI, you have much less rights as a model if your likeness is used in a news worthy publication as opposed to an advert.)  And lets assume there was no model release obtained by the photographer at the shoot.  This is not uncommon for photographers to do if they never plan on licensing the images for any advertising use. 

Now assume the model in the image sues, who is liable?  Is it the end user, or Instagram, or the photographer, or (if it was closer to the scenario I describe where the image was used by a photograph's client) the photographer's client who posted it? 

It would be interesting to hear a modeling agency's take on this as well.

Joe, much of this stuff will eventually be tested in court, but for most photographers, the problem is not really serious. Say your client posts on Instagram and his image is later used commercially. You may have a technical copyright issue, but lets face it -- nobody's going to pay $1,000 to use the portrait of an executive, unless the executive is a movie star, and she's naked. In this case, the user of the photo thought it might be worth $50, and the photographer turned it down. I suspect $50 was about right, judging from the general price of net-sourced photos. So if your client posts, and you're not really involved other than a technical violation of your copyright, you probably have lost little, if anything, and you'd just let it go, even if you find it annoying.

I would guess the biggest victims of this might be high-end wedding photogs, where a really skillful shot might be picked up by one of the big bridal magazines. I don't know what those guys would do, in that case -- they usually do hold the copyright, but telling a bride that she couldn't post to social media would probably lose the job. On the other hand, in such a situation where it's a one-time thing, if a wedding photo was used in violation of the photographer's copyright, and there was substantial money involved, it might be possible to notify the magazine that the bride was not authorized to post the photo, and their use of it was a violation of the photog's copyright. To get to that point, you just wouldn't include the general permission to use the photo on social media in the contract with the bride. You wouldn't call attention to the omission, but in the rare case where it might be important, you'd have that protection. And if it was a one-time job, like a wedding, maybe you wouldn't care if you pissed off the client.

[JoeKitchen]

Joe, much of this stuff will eventually be tested in court, but for most photographers, the problem is not really serious. Say your client posts on Instagram and his image is later used commercially. You may have a technical copyright issue, but lets face it -- nobody's going to pay $1,000 to use the portrait of an executive, unless the executive is a movie star, and she's naked. In this case, the user of the photo thought it might be worth $50, and the photographer turned it down. I suspect $50 was about right, judging from the general price of net-sourced photos. So if your client posts, and you're not really involved other than a technical violation of your copyright, you probably have lost little, if anything, and you'd just let it go, even if you find it annoying.

I would guess the biggest victims of this might be high-end wedding photogs, where a really skillful shot might be picked up by one of the big bridal magazines. I don't know what those guys would do, in that case -- they usually do hold the copyright, but telling a bride that she couldn't post to social media would probably lose the job. On the other hand, in such a situation where it's a one-time thing, if a wedding photo was used in violation of the photographer's copyright, and there was substantial money involved, it might be possible to notify the magazine that the bride was not authorized to post the photo, and their use of it was a violation of the photog's copyright. To get to that point, you just wouldn't include the general permission to use the photo on social media in the contract with the bride. You wouldn't call attention to the omission, but in the rare case where it might be important, you'd have that protection. And if it was a one-time job, like a wedding, maybe you wouldn't care if you pissed off the client.

In this instance, I would agree with you.  For a headshot of a CEO, I would agree as well.

However, a $1000 fee for licensing of one of my architectural images I have gotten several times in the past, and some much higher.  This is especially the case with interior images, which most don't have access too and even fewer can come in with 500+ lb. of lighting gear at any time of day, or night, with full control of the entire lighting system of the building to do it right. 

Not necessarily with local architects or GCs, although my fees are still high, with national and international manufacturing companies will easily pay that fee for a well composed and well lit image.   And much of the time, these images I sell the licensing to in this fashion this are from shoots I already did for the architect or GC and had already been paid for. 

I was recently emailed this past week for a possible stock photography usage with a $3000/image fee, but I did not have any images that fit what they were looking for.  Resale can be a very large revenue stream. 

It's a big deal. 

For someone in marketing, I am surprised you instantly think of wedding photography as paying the big bucks.  It can, but not nearly as high as a successful commercial shooter. 

[rabanito]

No, the social media sites are places people go to bore other people with tales of their lives, post pics nobody wants to see and generally be rude to each other.

Oh wait...

;-)

 

[John Camp]

In this instance, I would agree with you.  For a headshot of a CEO, I would agree as well.

However, a $1000 fee for licensing of one of my architectural images I have gotten several times in the past, and some much higher.  This is especially the case with interior images, which most don't have access too and even fewer can come in with 500+ lb. of lighting gear at any time of day, or night, with full control of the entire lighting system of the building to do it right. 

Not necessarily with local architects or GCs, although my fees are still high, with national and international manufacturing companies will easily pay that fee for a well composed and well lit image.   And much of the time, these images I sell the licensing to in this fashion this are from shoots I already did for the architect or GC and had already been paid for. 

I was recently emailed this past week for a possible stock photography usage with a $3000/image fee, but I did not have any images that fit what they were looking for.  Resale can be a very large revenue stream. 

It's a big deal. 

For someone in marketing, I am surprised you instantly think of wedding photography as paying the big bucks.  It can, but not nearly as high as a successful commercial shooter.

I'm not in marketing, I just have a general idea of what photographers get from on-line agencies and so on. I know that some thefts can hurt, and photography theft is rife on the Internet. There is a reasonably simple way to avoid it with sensitive photos, those photos where resale might be valuable -- don't post them on sites like Facebook that take your rights away from you. I mean, let's face it, if a site goes to the trouble of informing you that they're taking your rights, then it's reasonable to expect that they may exercise that privilege. They're not telling you that just to feel their lips move. I do suspect that Mashable wishes they'd paid that photographer a little more for her photo. It must have cost them a fortune to defend this case. Maybe if enough photographers sue, even if they lose, these sites will become wary of stealing photographs.

[JoeKitchen]

I'm not in marketing, I just have a general idea of what photographers get from on-line agencies and so on. I know that some thefts can hurt, and photography theft is rife on the Internet. There is a reasonably simple way to avoid it with sensitive photos, those photos where resale might be valuable -- don't post them on sites like Facebook that take your rights away from you. I mean, let's face it, if a site goes to the trouble of informing you that they're taking your rights, then it's reasonable to expect that they may exercise that privilege. They're not telling you that just to feel their lips move. I do suspect that Mashable wishes they'd paid that photographer a little more for her photo. It must have cost them a fortune to defend this case. Maybe if enough photographers sue, even if they lose, these sites will become wary of stealing photographs.

John, first, the fees you see online are drastically lower then what most get on commissioned shoots, or at least those that are working at the same level I am, which is at the high end.  Also, the more talented photographer and those who have images you cant just find online (such as from a specific building interior that you are using to sell product that was used in that building) the fees can be really high. 

So it is not really accurate to look at online stock fees just to let you know.  On top of that, some stock sites, the ones that pay well, you would not even be able to see what the fee is without talking directly with someone at the agency, and expect a good deal of negotiating.  You probably would not even be able to review any images without first setting up an account. 

But anyway, you dont know a lot of behind the scenes stuff that has been going on for years.  The ASMP, a pro photographers association I belong to, along with others, have been in talks with FB and other social networks for years.  They  have assure us repeatably that these T&Cs they use are only meant to protect them in case someone outside their control used the image.  Essentially they did not want to be held liable as well if some used an image without the photographer's permission and it was obvious they got the image from their site.

They told us they have no intention of ever selling images to make a profit for themselves.

This shows they have essentially been lying to us for years. 

[josh.reichmann]

This might be an opportunity to let everyone at Lula know that we have been working on a gallery/sharing space.
Essentially an internal website for each member where the community can comment (or not) and you can tag and organize your work (higher res then insta with 4K zoom in etc). The site would be visible to members or not and open to the web through our domain.

Having a site within our community and server space is a way to share your work with a much larger audience then you might see it otherwise.

 Its being designed for more serious photographers, and the subject matter criteria would filter out promoting products and avoid the deluge of selfie life and other images you sift through on Instagram.

And it would be secure from unsolicited republishing.
I mean, I should ask - are people interested in this kind of service through Lula ?
I’ll write another proper thread in the future, but just thought I’d ask.

Thanks

[Slobodan Blagojevic]

... the fees you see online are drastically lower then what most get on commissioned shoots...

A couple of years ago, Canon paid $11.5K to license one of my images.

[John Camp]

A couple of years ago, Canon paid $11.5K to license one of my images.

But did you put it on Instagram?