Not using Instagram, ever.

A heads up to some folks who have wondered why I don't use Instagram.  It was bought earlier this year by Facebook, and now has started "adjusting" their Terms of Use.  The following will be of interest to any of my Artist friends who have put their work on Instagram:

This is directly from the new Instagram Terms of Use (emphasis added):

Rights

(1)  Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, except that you can control who can view certain of your Content and activities on the Service as described in the Service's Privacy Policy, available here: http://instagram.com/legal/privacy/. 

(2)  Some or all of the Service may be supported by advertising revenue. To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you. If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata)) on your behalf.  

(3)  You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.  

(4)  You represent and warrant that: (i) you own the Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in these Terms of Use; (ii) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service; and (iv) you have the legal right and capacity to enter into these Terms of Use in your jurisdiction.

Okay, that's quite a mouthful, and I'm not a lawyer by any stretch, but after 28 years with a government agency, working closely with lawyers, and the past year reviewing intellectual property agreements, I think I can break this down.

(1)  ...you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service...  

This means that you are waiving all rights to compensation for any creative work you post on Instagram.  The kicker is in the words "...transferable, sub-licensable...".  With those words, they can transfer their rights to use the work to someone else, anywhere else, for whatever purpose they choose.  If someone else gets your content from Instagram through a sub-license or transfer of license and copyrights it as their own, you can't go after Instagram for it.  The only way it would be worse would be if it didn't have the words "...non-exclusive...".  You at least retain the right to license your work to someone else, or sell it yourself.

I work in the granting of intellectual property rights regularly, and have written the terms and conditions for companies to share IP rights in a non-profit effort.  The terms of release are always "RAND0": Reasonable and Non-Discriminatory, Zero Cost" or something very close.  The not-for profit entity has the same access rights as anyone you sell the IP to, only they don't have to pay for it.  None of these companies would participate in an arrangement that gave the not-for-profit entity "...transferable, sub-licensable..." open-ended rights.

...except that you can control who can view certain of your Content and activities on the Service...

Yup, you can control who can see and access your work on Instagram, but if Instagram passes the work to somebody else, you don't even have that control.

(2)  ...you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you.

This looks like a decent provision, they can use your content in ads in Instagram, no big deal, right?  Well, in fairness to Instagram, that might be all they meant.  However in that case, it's really sloppily written.  Remember that you've already waived your rights to the work, to any sublicense, whatever, and anywhere.  Since you agree that Instagram can use your work without pay "...in connection with paid or sponsored content or promotions, without compensation to you" that could easily be interpreted to include any "paid or sponsored content or promotions"  anywhere, not just on Instagram, and not just for Instagram.  Your hard work could end up being used in an ad for something in an international magazine or website, and Instagram gets the credit.

(3)  They may not always identify ads as ads.  Annoying, but compared to the rest of the stuff, no big deal.

(4)  You represent and warrant that:...(ii) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service; ....

Item (i) is no big deal, in essence you promise that you aren't violating anyone else's Copyright.  (iv) is pretty common, basically you can't duck the Terms of Use because you're underage or otherwise not legally able to agree.   (ii) and (iii) are killer, though. 

(ii) You are warranting that you didn't, even inadvertently, infringe on someone else's intellectual property or privacy rights in any form.

• Is there a sign in your picture that includes a trademarked logo?  
• A stranger in the background whose face or other identifying features can be seen?  
• How about a license plate?  
• Something that looks similar to a copyrighted work?

(iii) If Instagram uses your photo, whether in a paid ad or not, (and, thanks to earlier provisions, whether on or off Instagram) and someone objects because their privacy or intellectual property rights are violated, and sues Instagram, you are on the hook for for whatever "...royalties, fees, and any other monies owed..." that may come out of a settlement.  

Ouch!

Don't take my word for it.  National Geographic has halted all Instagram postings, and is looking at closing their Instagram account over this.  Maybe you should, too.