Ownership rights v. use rights and how to make your account right for you
Over the past few years, internet users have grown more and more concerned about their privacy rights on the internet. This past March, tech conglomerate Google was slammed with massive lawsuit alleging use of data collection practices on users who browse on the browser’s incognito or private mode.[1] This won’t come as a shock to those who have also been following the two 2020 lawsuits against Google[2] and Facebook[3] alleging violations of anti-trust laws. But Facebook is not the only social media platform facing backlash. Recently, Instagram has come under fire for its claims to unrestricted use of the photos and videos that its users post to the site. Recent allegations by users claiming unauthorized use of posted photos have only fueled existing concerns about whether Instagram owns the entirety of its users’ posted content.
Just last year, Pulitzer-prize winning photojournalist Stephanie Sinclair became entangled in a messy copyright battle with Instagram when the popular photo-sharing website took one of Sinclair’s popular uploaded photos and licensed it to advertising and digital media company, Ziff Davis, for use in an article without Sinclair’s permission. Sinclair’s uploaded the photo, titled “Child, Bride, Mother/Child Marriage in Guatemala,” to her public Instagram account, where it was used by Ziff Davis-owned media outlet, Mashable, as a visual accompanying a post discussing how Sinclair promotes social justice through photojournalism.[4]
So does Instagram really own every photo you’ve ever posted (even that embarrassing bathroom selfie from 2013 that you thought looked *so fierce*)?
The answer: no, but also maybe a little.
To be clear, Instagram does not own your photos, but it can use them without your permission. The thing is, although technically you own your photos (or, as us in the legal biz say, own the copyrights to them), Instagram can still take your photos without your permission and use them for any purpose it chooses, such as advertising or licensing them to a third-party, just as it did when it licensed Sinclair’s photo to Mashable. So here, ownership doesn’t end up mattering all that much.
However, this is only the case if you post your photos to an Instagram account that is not set to private. Posting to an Instagram account that is set to private keeps your photos safe and out of the hands of Instagram and its affiliates. You can find more on managing your Instagram privacy settings here.
But how can this be? If you’re the one who owns the photos, then how does this practice not infringe on your rights of ownership to your posted content? How does Instagram get the right to use our photos so extensively? Well, it’s because we give them that right. When we set up an account, Instagram presents us with its Terms of Service, which we must agree to in order to create the account and begin using the site. You know, that super-long, contract-looking thing written in 8-point font that pops up on the screen that we always impatiently scroll through to click the “I accept” button at the very bottom? Yup, that’s it. Buried deep within the thicket of jumbled legal jargon is a clause that basically says that you agree to give Instagram a license to use your publicly-posted content, including the right to sublicense your content out to third-parties. This means that Instagram can profit off selling licenses to your content without your knowledge or consent. And yes, it’s all legal.
This all comes as bad news for those whose job relies heavily on the exposure and reach that a public Instagram provides. Many artists, photographers, and even social media influencers rely on Instagram to promote their art, photos, sponsorships, etc. with hopes of reaching a wider audience than the traditional route of a personal website. This means that when one’s content is taken and sublicensed to another party for display on the third-party’s site, the viewers are not able to interact with the post or the content owner’s page. Essentially, this practice directs traffic away from the pages of the content owners and allows their creative efforts to be under-rewarded.
So what can you do as an individual or business to protect your privacy and interests on Instagram? As a business, it’s a good idea to make a professional account. A professional Instagram account comes with analytic tools and insights that can help you grow your business and reach your target audience. One of these features is called Instagram Insights, which tracks and displays metrics such as audience demographics and content interaction on your page. You can find out more about the perks of having a professional Instagram account here. Additionally, if you are a business owner or entrepreneur who uses social media to promote your business, check out these social media policy guidelines to leave the right impression for consumers online: https://revisionlegal.com/copyright/media/social-media-policy/
As for individual users, it’s totally up to you. If you’re someone who wouldn’t mind that flex pic of you leaning up against a fancy car potentially being used in an automotive company’s ad (this is an actual case and you can read more about it here), then leave your profile public and rack up those likes. If not, make sure to set your profile to private and keep those fierce bathroom selfies between friends;). Still have questions about using social media to promote your business? Revision Legal offers a wide array of legal services related to the internet, business law, and consumer protection. We can be reached by using the form on this page or by calling us at 855-473-8474.
[1] https://www.cnet.com/news/google-must-face-5b-lawsuit-over-tracking-private-internet-use/
[2] https://www.cnbc.com/2020/12/17/google-faces-a-third-government-antitrust-lawsuit.html
[3] https://www.nytimes.com/2021/06/28/technology/facebook-ftc-lawsuit.html
[4] Sinclair v. Ziff Davis LLC