Court Rules Anyone Can Use Your Instagram Images, for Free. Should You Care?

Court Rules Anyone Can Use Your Instagram Images, for Free. Should You Care?

So a court recently decided that anyone can use your public Instagram images for free without having to notify you, much less pay you. Lots of photographers out there are outraged, but should you care?

When I first heard about the court ruling I must admit that I was absolutely flabbergasted and displayed some internal outrage and silent fist thumping. I felt that it was just one more dagger in the heart to struggling photographers and creative artists trying to eke out some kind of living from social media. But if I’m really honest, it was actually just me projecting some internal bias and using it to manifest my anger with the growing frustrations I’ve had with Instagram and Facebook over recent years, because of their devious algorithms that chronically reduce the reach of your posts the more followers you get. When I took a step back, however, I soon saw that this was just me going off on a tangential rant.

Horrible Reach numbers

Thus, when I cooled down a tad and thought about the facts regarding the recent court ruling and put everything together in my head, I couldn’t really see what the fuss was about. In the court’s ruling, and in facts that have been made available on various sites including here on Fstoppers, it’s evident that Instagram’s TOS clearly show that you are providing your images to Instagram to use as it sees fit.

In the case of Stephanie Sinclair versus Mashable, you would have to assume that Mashable knew Instagram’s TOS before they made Sinclair an offer of $50 for her image. Why? Because they asked Sinclair for the rights to use her image and offered her a cash payment but when she declined they went ahead anyway and embedded her image into their article. This tells me that they already knew they could embed the image one way or the other but did the courtesy of offering $50 to Sinclair for the image. Now, whether you think $50 for the image is fair or not is a completely different issue and one that is beyond the scope of this article. What is at the core of the argument is that Mashable did nothing wrong in terms of Instagram’s TOS and didn’t in fact even have to contact Sinclair to embed her image into their article if they didn’t want to.

Embedding is simply a couple of clicks away

Indeed, as you can see in the image above, if you open up Instagram on a web browser rather than your phone, you don’t even have to login to Instagram or be an account holder on Instagram in order to take an image from any public Instagram account and embed into an article you might be writing. So for any content creator on the web, this basically means that any image on public Instagram accounts (including mine) is pretty much fair game for use, the same as any image you might find on a free stock photos service such as Unsplash, Pixabay, or Pexels.

How does that make you feel when you actually read that in print and it hits your eyes and gets processed in your brain? For me, it’s a rather shocking truth to confront to know that anyone can go to Instagram and with the quick click of a button, legally use my photos without even contacting me or notifying me. But I guess that’s the trade-off you make when you use Instagram for free and use that service to expose your work to thousands and thousands of people who might possibly never have known who you were, otherwise. If it’s part of Instagram’s TOS, and you knowingly and deliberately set your account to public, what’s the issue? It’s kind of like getting angry if we get fined for driving 80mph in a 60mph zone. Is it Instagram’s fault if you quickly skimmed the TOS and clicked ‘Agree’. Or kept using Instagram despite any changes in its TOS?

I then thought about my own specific circumstances to see whether I should really feel aggrieved about this or not. In doing so, I contemplated how much money or work I actually get from Instagram these days. When I crunched the numbers it took me about three minutes, and two of those three minutes was sipping a coffee. In short, I really don’t make any money from Instagram these days so the idea that someone doesn’t have to pay me for my images doesn’t make any difference anyway, in my case at least. You might counter that by saying that web content creators know that they don’t have to pay me to use my images so they’re not contacting me, but that hasn’t been my experience in knowing where my images are across the web.

Time to quit Instagram?

Despite all this, I’ve seen a number of photographers insist that they will be leaving the Instagram platform or no longer posting any content to their accounts. Ending your association with Instagram is one option, but it’s certainly not the only option available to you. What are some others?

What Can You Do About It?

You could make your account private. That’s as simple as switching a toggle in your Instagram settings. When you set your account to private it prevents companies or anyone else from embedding your images into an external site. The problem, of course, with having a private account is that no one can see your images unless you’ve allowed them to follow you. Casual browsers can’t see your images in public galleries either so exposing yourself to new people might be much more difficult if you set your account to private.

Another option would be to watermark all of your images. The watermarks wouldn’t necessarily have to be giant, offensive logos splashed across the frame from top to bottom, they could be much more subtle and politely positioned. But if Instagram is providing the HTML code for companies to use then your entire image will be embedded onto a site's page, meaning the watermark will also be included. Using software such as Lightroom or Capture One, it’s not difficult at all to include a watermark on all of your exported images.

Would it be so hard for Instagram to offers users the choice of granting embed permissions?

Finally, we could all lobby Instagram and simply ask them to include a toggle switch option to allow users to nominate whether external companies can use their images or not, similar to that which already exists on YouTube, for example. Instagram currently has a toggle switch that allows you to automatically share your images to Facebook, or Twitter, or other social media platforms so I’m sure the powers who write all the coding at Instagram could easily create such an option. Ultimately, I guess it comes down to whether you care enough to lobby Instagram for such a thing.

In summing up, the recent court decision to rule in favor of Mashable against the photographer sent some mini shockwaves through the photography community. Some have insisted that the decision will spell the end of their association with Instagram, but is it really so black and white? And does it really make a tangible difference to your current situation? I’d love to hear your thoughts in the comments below.

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88 Comments

Kawika Lopez's picture

My real gripe is that a lot of photographers built and grew followings on Instagram before these new T&Cs were instituted. When there was a sense of ethics.

To say that building a following on Instagram is free is fair, but it’s free in the same way it’s free to hand deliver your own mail on foot. You don’t pay anyone, but it’s a lot of work and takes a lot of time.

The T&Cs were essentially imposed at some point in time and photographers had to decide whether they would throw away their time and effort in the interest of maintaining their intellectual property, OR move forward and hope they wouldn’t be exploited as a result of revised terms of use.

Kawika Lopez's picture

I’ve personally expressed my discontent to Instagram (albeit likely no one actually read my emails) but I don’t know how effective it will be if only a few of us care enough to seek reform. It has to be a significant number of us with a common and clear message.

Frederic Hore's picture

Class action lawsuit perhaps? Online petition, maybe started right here on f/stoppers? Ideas?

Brook Brown's picture

Lawsuit? For acting in accordance with the agreement established between IG and their users? Good luck with that one.

Online petition? To strong-arm them into charging you for use of their service rather than allowing sub-licensing? Why?

Iain Stanley's picture

I know exactly how you feel. I'm lucky if my posts reach 10% of my followers these days. This is just another step in making it harder for IG users to leverage their growth. Instagram might counter and say, "without our platform, you wouldn't have any followers/growth" etc etc....

Alex Armitage's picture

Yeah but without us they wouldn't have any users or content either.

Kirk Darling's picture

Well, actually Instagram was never intended to be a platform for professionals, and they'll do as well with the amateur content they planned for in the beginning.

Brook Brown's picture

If you haven't stopped using IG because of their evil behavior, you must still think you're still getting enough from them in return.

Kawika Lopez's picture

I get what you're saying, but its more like I'm having a hard time deciding what the best decision is, so Im stuck where I am right now, where my IG hasn't been deleted. Its a difficult decision to weigh especially when it involves years and years of work. Articles like this spur on conversation and definitely help us all get a lay of the land, as far as the opinions of others.

John Savidi's picture

These are the terms applied when Instagram first appeared.

" you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly ("private") will not be distributed outside the Instagram Services"

As you can see there is no substantial difference, even back at the beginning you granted the sharing permissions that are part and parcel of the recent court action.

Kawika Lopez's picture

First off, let me just say that I don't think the court decision was wrong. Unethical? Maybe. I just worry about the implications moving forward now that the T&Cs are in the spotlight.

I agree. In the early years of Instagram, yes, you were granting instagram a limited license, but im fairly certain it did not include modify, delete from, add to, or translate. My understanding is that they could essentially "repost" user content in conjunction with advertisers, but they couldn't change the content, overlay logos, crop, or anything of that nature.

The addition of these words into the phrasing drastically increase the rights that instagram has to reproduce content in just about any way they seem fit, and if this doesn't get brought up in some way or another, it will only get worse.

Its possible the next time we hear about Instagram licensing user content, it will be for something much more controversial or blatant.

Mark LaMontagne's picture

The ability to sub-license is not in the original terms. All the original terms do is give Instagram the right to use your photos in marketing. Sub-licensing allows them to provide an embed code that anyone can use.

jim hughes's picture

Ditto for Facebook. They went all in on pay-to-play and canceled all our past efforts at building a following.

That's one reason I never did Instagram.

Frederic Hore's picture

I presume the jurisprudence you are referring to occurred in the United States? Copyright laws are not the same in every country. I am suing one newspaper in Canada for copyright infringement for stealing one of my images posted on Facebook, then using it without a license, payment or attribution. They went so far as to crop out my watermark at the bottom of the image.

All my IG and FB images are watermarked. Same with Twitter. At first I used to submit images at 72ppi and 900 pixels wide, then upped the quality to 300ppi, so that they could be pinched and viewed with more detail, but now I may actually go backwards to 56ppi so that the images look good only on IG, but can't be enlarged and used in a larger format without serious degradation and visual artifacts.

I guess this becomes a personal decision. I have profited from IG, when one of my images was selected by Canadian Geographic, which asked for a high res copy and permission to publish. They shipped me a copy of the book it appeared in. And some of my images have been broadcast on a local TV stations. I use IG to promote my photography workshops too, so it really becomes a Catch 22 situation - to publish photos on IG knowing that in the US at least, the images can be used without being paid or even credited, or NOT submit any at all.

Unfortunately, almost all these websites are the same - Facebook, Flikr, 500px, and many others. For US resident photographers, the only way to resolve this is to push your congressman/women and senators to amend the copyright laws, to eliminate this legalized theft.

Stay safe everyone.

Cheers from Montréal.
Frederic Hore
https://www.instagram.com/frederic_hore

Brook Brown's picture

IG is not guilty of anything, much less "legalized theft". They're simply acting in accordance with the ToS. If any IG user doesn't think their getting enough in return, they're free to abandon the platform after deleting their images (which prevents IG from sub-licensing them). This is false outrage.

Jeff McCollough's picture

Man is it just me but are people just stupid? Embedding IS NOT the same as downloading the image and using it for anything you want. People have been embedding Youtube videos for years.

Chase Wilson's picture

There’s nuances that click hungry outlets are happy to ignore.

Ed C's picture

Even if they do download I don't think it is that big a deal. Nothing on Instagram is even big enough to make a computer wallpaper at full resolution.

Jeff McCollough's picture

Exactly. And even if they downloaded the images there we can still claim copyright. That is never voided when we use IG. If it were really true that we could use any images that we wanted for free off of IG then everyone would be stealing photos every single day there.

sam dasso's picture

And people do it every single day.

Iain Stanley's picture

Are you talking to me? I'm not sure ....but in this 1,253 word article, I did not write download once. I wrote embed/embedded 8 times. Just wanted to clarify that point

Jeff McCollough's picture

Not talking to you necessarily.

Em Comments's picture

You may or may not have written the actual headline that starts the process of confusion and conflation. However, you did write "So a court recently decided that anyone can use your public Instagram images for free without having to notify you, much less pay you." No the court did not, it ruled that the IG terms mean that we have all given away our rights over embedding of our images. You also equate Mashable's offer of money in exchange for the rights to use her image with embedding of an image. I would assume that that Mashable are either unusually kind and polite for a company (not my experience) or they wanted to by a proper licence for the image so they were not dependent on IG.

Iain Stanley's picture

This is from your latest IG post. Click the 3 dots and I can embed your image into any place I want, for free.....is that right or wrong.....the courts have decided that's fine

Brook Brown's picture

It's fine because Mr. McCollough agreed to allow it in exchange for using IG. He, and any other user, can cancel the sub-licensing agreement on any specific image by deleting it from the platform.

Iain Stanley's picture

I agree with pretty much all the comments you've made here. If you use IG and have your profile set to public, then so be it. And as you said, when someone embeds your image you get attribution anyway.

Jeff McCollough's picture

Yes sir. Do you happen to know what an embedded post looks like?

Iain Stanley's picture

yes, I know exactly what it ooks like. Your name, account name etc is there for all to see. "Exposure" galore for you....but it seems many out there want payment for that

Jeff McCollough's picture

Yeah. But still embedding a photo is a far cry from swiping your images and using them on a billboard.

Iain Stanley's picture

I agree, that's why I made a point of repeatedly stating "embed". Thus, my position - I don't know what the fuss is about, really

Jeff McCollough's picture

My thoughts exactly. I just see constant articles about this and comments from people complaining about the T&Cs on IG and FB and people claim that you loose copyright to those images or that anybody can do whatever they like with said images but that is simply not the case at all.

Kirk Darling's picture

The fuss is over the clickbaity headline.

Iain Stanley's picture

In all honesty, I don’t see how it’s clickbait. The photographer, Stephanie Sinclair, took Mashable to court because they used her image, without paying her, and after she’d refused their Initial offer of $50. The court ruled in Mashable’s favour, meaning they had every right to use Sinclair’s image the way they did under IG’s TOS. So yes, the court ruled that companies or individuals writing web content can, indeed, use anyone’s IG images without payment. That’s what the headline says, and the content reflects that. My question is, should you care? Clickbait is when a headline and the article content have little in common. I can’t see how that is the case at all here

Iain Stanley's picture

Like this

Just me's picture

I think YouTube/Vimeo let you choose if people can embed your videos or not. Forcing user to watch it on the original context.
IG do not let you choose.
That's where is the difference.

Iain Stanley's picture

That's exactly what I said in the 2nd last paragraph :)

Just me's picture

I was replying to someone else. Don't take it for you.

Ken Hilts's picture

Any image I post to IG (or FB, or Flickr, etc.) is rendered at about 1000px wide and watermarked. Others can (and do) use the images without permission or even proper attribution regardless of the ToS, but I think it makes it less likely that they can profit from it.

Brook Brown's picture

Other users absolutely cannot, in accordance with the IG ToS, use it without proper attribution because they have to embed a link back to your image.

Mutley Dastardly's picture

I'm not amazed this all happened with social media - we saw it coming - but we avoided that nasty idea. Now we take the hit for that. Nothing is for free - and losing your rights or privacy is expensive, very expensive.

Brook Brown's picture

No one is losing rights or privacy. IG offers a service in exchange for a sub-licensing agreement on the images that users post. A user can cancel the agreement on a specific image at any time by deleting it. How is this controversial?

Eric Crudup's picture

I got halfway through your article and still have no clue what your talking about. You should probably describe in much more detail what happened in the court ruling, or link to somewhere that does at the beginning of the article.

Unless Instagram owns copyright for uploaded images, there is some piece of information I'm not getting from the article.

Edit: whoops, it WAS linked. Maybe highlight the entire phrase "here at Fstoppers" as a link, rather than the single word "Fstoppers" for clarity. Usually when just the name of a website is linked, it goes to the main page.

Brook Brown's picture

Or maybe you should just pay attention. How is it possible that you have not already heard about this?!?

Gordon Cahill's picture

Interesting article from a website that seems to do the same thing on a daily basis with the youtube content others have created. Using the work and effort of other to support your own enterprise without compensation appears to be the sad new norm for much of the on-line media, including photographic websites. They present this like they’re doing you a favour and sharing when what they’re really doing is trying to redirect the revenue from ad clicks from the creator to them by *sharing* their content.

So, no, I’m not surprised that a news organisation used someone else's work without compensation in order to make money for themselves. All I can do is not use their links or stop shopping from their stores.

Iain Stanley's picture

Yes and no, because YT specifically gives creators the option to allow others to embed their videos. If YT creators allow it, their videos are fair game for use and they're giving approval for use. Also, do you know how many YT photographers email me each week asking me to share their latest videos on Fstoppers? It's a lot. So it's a two-way street

Brook Brown's picture

Why would you be surprised that Fstoppers and Mashable would access content that was posted to other media platforms with ToS that allow it to be accessed in this way? Clearly the copyright holders intended this or they wouldn't have posted the content. I assume they find it to be valuable. Where is the harm in this?

jim hughes's picture

It makes me feel smart because I never wasted any time on Instagram. I'm not really that smart, though, because I did waste a lot of time on Facebook, creating an 'artist' page and building up a few hundred followers. And then FB made it all pay-to-play so my 'followers' no longer even see my posts unless I pay to boost them.

Social media companies all have the same plan: pull in as many users as possible, and then start monetizing them. Anything you give them, they'll try to sell to someone, somehow.

Iain Stanley's picture

pretty much exactly right. People can try beat them at their own game but they keep moving the goalposts in their favour....

Brook Brown's picture

Are you Jim Hughes, the photographer from Minneapolis?

jim hughes's picture

I'm in Minneapolis, yes. Don't know if I'm "the".

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