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.
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.
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.
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.
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.