CNET reports this morning that Instagram, the popular social photo app for iPhone and Android that was recently acquired by Facebook, is updating its terms of service as of January 16th, 2013 to allow for the service to sell your uploaded photos to others without having to notify you or compensate you.
What does this mean for individual artists or bands that are touring, in the studio or at press events? It means that whatever you end up uploading yourself or whatever your fans upload, could potentially be sold to a 3rd party service without compensating you or notifying you that it did so. Here are a few examples:
- A fan snaps a pic of your performance at a local club. The club scours Instagram for all photos of bands taken at the bar and purchases the rights to use those photos. The club then adds those photos to its Facebook, Twitter or Pinterest accounts and also uses the photos in advertising and marketing on flyers, or shares them with news organizations. While you may have requested no photos be taken during the performance, it will be extremely difficult for an artist or band to control the image once the picture is taken.
- You’re hanging out late night in the studio. A superstar artists calls you up and says he wants to come lay down some tracks with you, but wants to also keep it on the down low. The artist shows up and you start jamming together. One of your groupies snaps a photo using Instagram. After January 16, 2013, Instagram has the right to take and sell that photo to a 3rd party without compensating you and without you being able to sue for damages. Of course, Instagram says in its terms that the person who uploads the photo must have the right to do so, but your groupie just snapped the pic without signing a non-disclosure. You’re quite possibly out of luck. Fox News has acquired the photo and you and the superstar artist are now splashed on the cover or home page of every major celeb rag.
What does an artist do? First, if you’re certain you do not want any photos from your Instagram account sold to 3rd parties, you must delete/remove all your photos from the Instagram application (I did that myself this morning). Second, consult with a music industry attorney who can advise you on what notifications to include on your tickets, flyers and other promotional material at shows and make sure to get folks hanging out with you in the studio to sign non-disclosure agreements. We’re not attorneys, so our advice is just that – advice. Make sure to get an attorneys opinion on these matters and make absolutely sure the attorney is well versed in digital rights and copyright.
Remember, once your photos are on Instagram, after January 16, 2013, you’ve lost control of your likeness and image. And it doesn’t matter whether you delete the photos on January 17th, Instagram can quite possibly use photos that were deleted after the date of the change in their terms of service.
Social media can certainly be advantageous for many artists. But, as more social services look for revenue, you – the user – must keep abreast of these changes to insure that you have as much control as possible over your images or you will be out of luck when someone snaps a photo of you and Instragram profits from your likness and image.
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