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.
Cool. Never heard of you.
Sad isn't it?
So, just a thought. Would it be a good idea to delete your earlier posts then? We dont really need an archive of hundreds of photos on instagram do we? Just keep a few dozen and rotate them around.
you could certainly do that, especially if you didn't want people embedding your earlier posts. I mean, the lifespan of a post on IG is 24 hours at best so few people look at anything older than that anyway......there's plenty of apps out there that let you batch delete your IG photos. It's just whether you care that much or feel that strongly about it, I suppose
The only way to get it right is to build a similar platform but based on principles and have it independent from these greedy bastards. Get off the Instagram Facebook and similar platforms where you have no rights over your personal data.
Platforms like that have been created but never attracted enough users. But maybe someone will try again and get it right.
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Misleading title is misleading. I don't think it's news for many people versed in web design that embedding is not infringement. However, it is still required by law to purchase the rights to use photographers' photos in print, and digitally when not part of a public platform (i.e. Instagram)
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Point taken, but I respectfully disagree, regarding the title. The fact that the photographer took Mashable to court, and many in the photography community have shown outrage since the decision (warranted or not) shows that many have/had no idea about the nuances of downloading vs stealing vs embedding vs screenshot etc etc.
The title implies that images uploaded to Instagram can be used in any way possible, including printed media. That's a large overstatement.
It doesn’t imply anything, that’s how you’ve taken it. The title says a court has ruled anyone can use your IG images free, without payment. That’s exactly what the court ruled because the photographer took Mashable to court for using her IG mage without payment, or permission. And the court ruled in Mashable’s favour
There is one word in the title that makes it a bit misleading, that is the word use. Use is too vague as it means many different things from printing to embedding and everything in between. Replace use with embed, and you have an accurate, honest title that tells the reader what they need to know without even reading the article. I know, the whole point of the title is to get them to read the article, but...
That's the other half of the equation, anyone who sees the current title and didn't read the full article is likely to infer that it's now legal to use any image posted to Instagram for any use they want. And it seems everyday there are more and more people who only skim the headlines without reading the article and the title becomes the full story. So it is a combination of word choice in the title and the fact that so few people bother to read more than just the title that is the problem.
All valid points. On the flip side, these discussions in these comments clearly show that many readers don’t know the differences between embed, download etc. Sometimes if you’re too specific on titles you lose half your potential readership....
It's called fine print for a reason: no one reads it. 95% of people will now assume they can use anything on IG, free. Can that genie be put back in the bottle? I'd say no.
The interesting thing is, I wrote an article here a couple months back on an entirely separate topic, and wanted to use an image of Tash Sultana, a famous Australian singer. I’d seen the image on IG, so I contacted the photographer, waited a few days for the responses, then got a higher res image for use, with permission. In reality, I didn’t need to do any of that and could have just embedded the pic straight off. That wouldn’t have felt right to me
I was recently contacted by someone who politely asked to use one of my bird photos as a reference for part of a painting. I thought that was great!!
Often we don't care about making a few dollars when we can get a bread crumb of respect.
I agree completely. Most often, I’m more than happy to share, depending on person/context. The irony is that you’re already posting your photos free to a user base of billions on IG anyway!
I'm always amazed how cheap some pro photographers are. For $180 a year ($0.5 a day) you can post publicly on Smugmug and you can sell images and prints of all kind for whatever price you want. If your images are any good people will gladly pay instead of stealing or embedding from IG or Facebook. You don't have to watermark, reduce resolution and your copyright is protected. If you want to post for free, then don't complain if you don't get paid.
The trade-off, of course, is traffic. You have to have enough internet savvy to get those potential customers to your Smugmug site in the first place. Most do that via IG, FB etc
And now we're looking for new ways. And mostly not seeing any.
Instagram and Smugmug serve vastly different purposes.
Where my Flickr fam at!
Iain Stanley wrote, “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.”
It’s one thing to be able to exploit third-party images in news, information, and editorial media. Notwithstanding signed releases, it’s quite a different story to use (embed) images with identifiable people in advertisements, endorsements, or sensitive media uses, as those people still retain their rights of publicity/privacy.
If an (IG) image included active trademarks, those images would have to be cleared before using those protective marks commercially.
I’m not convinced it’s safe to commercially exploit images of identifiable people via FREE photo sites, including Unsplash, Pixabay, Pexels, or Creative Commons, as those open licenses offer users no warranties or indemnifications.
You could well be right. I think individuals would have to look at each site‘s TOS. I think most people would assume that anything that’s up on Pixabay etc is fair game for use. Whether that would legally hold up to a challenge, I’m not entirely sure
Better check the terms on FACEBOOK if you are there before you whine about Instagram.
If you want to understand this case/issue, read the following.
After doing some research on the Stephanie Sinclair versus Mashable case, I see that there are some very interesting aspects to this case. First off, this ruling against Sinclair was a summary judgement, not a trial. A summary judgement is where a defendant presents basic legal facts to the judge, who rules if any laws were broken in the first place, and if not, dismisses the case. It would be like accusing somebody of murder when the supposed victim is still alive and well. The defendant would make this point to the judge when filing for a summary judgement decision. Summary judgements can be appealed. Judge Kimba Wood dismissed the case.
Most social media platforms’ TOS allow the social media company (Facebook, Instagram, etc.) to use your photos as they see fit, including the ability to sub-license them to other parties. Some such companies actively do this (I'll list two at the end), but most don't do anything with your photos (i. e. use them for marketing purposes). Also, members can share the photos within the platform. They do not allow people outside the platform to use them without permission.
The fact that Instagram can sub-license you photos was brought up by Mashable, and it is one of the points in its filing for summary judgement. The judge agreed solely on this point, and here’s why:
There is no denying that anyone who joins Instagram or any other social media platform agrees to the TOS. On the surface it would seem that if Instagram sub-licenses user photos, the party wanting to use the photo would have to contact Instagram for permission, or a license. Mashable did not do this. But here’s the loophole. Mashable did not download the photo to its computer, then upload it to its website. It embedded (aka hotlinked, aka inline linking) the photo which allows an image or video on one web page show up on another without actually making a copy (this is an issue in itself, which I will discuss shortly, but it is impertinent to the judge’s decision).
The loophole is that Instagram PROVIDES the code for embedding, and in the judge’s reasoning, this is Instagram issuing a sublicense for anyone to use your photos. It would be different if Mashable’s IT guys had to write their own embed code, which is possible to do. YouTube does this same thing, but I believe with YouTube, a member can turn off the ability to provide the code. Thus, it is assumed that if you do not turn off the embed code feature, you are allowing others to embed your video. With Instagram, “turning off” the embed code feature means making your account private. Of course, your private members could then use your photos since the embed code really isn't "turned off." The optimal thing for Instagram to do would be to allow public account users to turn off the embed code feature.
Sinclair also argued that Instagram’s TOS are not clear, but the judge disregarded that argument, which is understandable. If you don’t understand the terms, don’t join.
Embedding leads to a whole other issue, one that is very interesting at this point in time.
In 2005, the 9th Circuit Court of Appeals (California court) ruled in the case of Perfect 10 v. Google that hotlinking was not a violation of copyright law. This was a 180 degree turnaround from their 2002 ruling in Kelly v. Aribba Soft Corporation, but that ruling was withdrawn a year later due to a legal technicality, which means that it never existed. I don't want to start a conspiracy theory, but it does seem strange that a court would suddenly make a complete change of mind in a case against one of the largest companies in the world.
The way the legal system works is that hotlinking is legal in the 9th District. In the rest of the country, it is a gray area. In general, a federal court looks to other federal courts’s opinions and sticks with it unless it feels the opinion is out of order—they are not bound by it. Any defendant in a copyright lawsuit involving hotlinking will bring up the Perfect 10 case, citing it as precedent. But this is where things get interesting.
In 2018, the US District Court, Southern District of New York ruled in Goldman v. Breitbart that hotlinking is not defacto legal, and in fact ruled that it was illegal in this case. Breibart did exactly what Mashable did except the social media company was Twitter. I have never read what happened in regards to an appeal to the 2nd Circuit Court of Appeals—perhaps Briebart settled. However, if the Goldman verdict is upheld by the 2nd Circuit Court, there are now two Circuit Courts with two different opinions. And that could lead to the issue going to the Supreme Court.
Let’s just say that Briebart settled. It would then be illegal to hotlink in the Southern District of NY. It’s legal in California. Everywhere else, it’s still up in the air.
As it turns out, Sinclair’s case was in the Southern District of New York. But the judge never mentioned the hotlinking controversy in her decision---her own court already ruled that it is illegal. But, according to the judge, the legality of hotlinking is not the issue. By joining Instagram, Sinclair allowed her photos to be hotlinked. As mentioned, had Mashable written its own code, I don’t think the TOS would have played a part. The legality of hotlinking would have been central to the case.
It’s interesting that the Goldman case was all about hotlinking, not Twitters TOS, which I bet is the same as Instagram’s. I don’t know if Twitter provides an embed code (I’m not a member), but if so, I don’t believe anyone brought that up. In truth, I never thought of sublicensing as did Judge Kimba Wood. I always thought of it as going to Instagram and asking for permission, or something along those lines.
I mentioned at the start two companies that do sublicense your photos. One is Google, and they do it for a fee. You would think Google had enough money and didn’t have to stoop to making money off of user submitted photos, but that’ not the case.
I caught a guy using my photos, and he told me that he paid Google for using them. Turns out he was correct. If you’ve ever gone to something like Google Maps to look up a business or a tourist destination, you’ll see that people can write reviews and upload photos. I had done this with some of the National Parks I wrote about as a way to promote my business. Google takes all submitted photos and allows, for a fee, anyone to have access to its database, all by hotlinking—remember, hotlinking is legal in California. After reading the TOS I saw that I allowed Google to sublicense my photos. In fact, when I deleted one of the photos in question from my Google account, it instantly disappeared from the guy’s website, proof that it was being displayed by hotlinking.
Trip Advisor also sublicenses your photos by creating TOP 10 lists. It then sends out marketing emails to every media/news company on the planet offering free use of its TOP 10 lists full of user submitted photos. They do not charge, but of course any links in the list lead back to Trip Advisor.
Thanks for reading.
The Photo Repo Man
photorepoman.com
I like your legal write-up, but besides legality - what was a value of the image in question? Mashable embedded her image in a story about 10 photographers as an example of her work. Clearly editorial use. If anything it is a free promotion for her. Value of this image is close to nothing. Not because image is bad, but because nobody in their mind would use this image for commercial purpose to make money. Image is editorial in nature on very narrow subject. Good for use for some noble cause by some nonprofit but not worth a dime to anybody else. $50 Mashable offered her is very fair.
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sam dasso wrote, “Clearly editorial use. If anything it is a free promotion for her.”
There’s no promotional value when Mashable and others exploit Stephanie Sinclair’s editorial images – just bad intent. And photo credit lines don’t pay the bills.
To support Stephanie and other photojournalists livelihood, their editorial income is based on photography assignments and re-licensing those images to other non-commercial media.
sam dasso wrote “$50 Mashable offered her is very fair.”
The $50 offer only benefits Mashable’s interests. It’s not even worth the time for a photographer to prepare and email the client a licensing agreement for $50.
With all due respect to Sinclair, who is obviously a very talented photographer, if she wanted exclusivity and licensing rights over that (any) photo, why on earth would she upload it to Instagram, a free platform used by over a billion users on a monthly basis? It's Photography 101 when you're working with magazines/editors/publishers that you don't publish images to social media that you might want to license to print journals or magazines etc. I was taught that from day 1. Magazines want exclusivity and first showing of great, new images. Not ones that have already been seen by 100,000+ on Instagram.
Sinclair published that image to Instagram, so Mashable had every right to use/embed it under Instagram's TOS. I hardly think it's exploitation when she's already shown it to however many tens of thousands free on her various social media channels
Iain Stanley wrote, “…if she wanted EXCLUSIVITY [emphasis] and licensing rights over that (any) photo, why on earth would she upload it to Instagram, a free platform used by over a billion users on a monthly basis?”
20-20 hindsight & lesson learned: Because of the recent US district court summary judgement, Stephanie Sinclair and most all other working professional photographers & creatives now have a much clear understanding of how public-designated social media platforms can exploit images via sub-license and other terms of use language. Because of Instagram’s vast popularity, it can attract new clients and licensees; however, it’s now fraught with uncontrollable third-party embedding issues. The creativity community is now on full notice.
Sinclair was never interested in “exclusive[ly]” licenses, as the Mashable embedded image and other Sinclair’s “Too Young To Wed” (TYTW) series of images were first-published in early 2015. Mashable embedded Sinclair’s image on March 16, 2016.
To help protect girls’ rights and end child marriage, Sinclair founded the non-profit TYTW organization. Sinclair used her Instagram account to promote her September 10th to 20th, 2015 TYTW fundraising: Signed prints were available for $100.
In addition, Sinclair’s posted TYTW Instagram images, including the one embedded by Mashable, were available for further non-exclusive editorial licensing for news, information, trade & textbooks, documentaries, corporate humanity project sponsorships, other US/foreign language print and electronic magazines, and print sales.
Iain Stanley wrote, “It's Photography 101 when you're working with magazines/editors/publishers that you don't publish images to social media that you might want to license to print journals or magazines etc.
Searching the US Copyright Office’s database, Sinclair first-published her “Child, Bride, Mother/Child Marriage in Guatemala” images (aka TYTW) on/about February 6 & 8, 2015 in various publications, including National Geographic, Huffington Post, Refinery29.com, and Marie Claire. I’ll presume that Sinclair was hired by Nat Geo that got first-publication rights to her assignment images. Sinclair subsequently registered those images with the USCO on/about October 23, 2015. After first-publication, it’s reasonable for Sinclair to showcase her award-winning images on Instagram to new clients, licensees, and fans.
Iain Stanley wrote, “Sinclair published that image to Instagram, so Mashable had every right to use/embed it under Instagram's TOS.”
I agree. I never contended that contractual issue in my posting.
Iain Stanley wrote, “I hardly think it's exploitation when she's already shown it to however many tens of thousands free on her various social media channels.”
Mashable could have simply paid Sinclair a fair licensing fee (via fotoQuote) and/or made a financial donation to the TYTW, and this legal matter would have never transpired – Mashable would have ended up looking like the good guy (corporate social responsibility) who supports women causes! Even with Mashable being reserved the right to exploit Sinclair’s image (via sub-license), they could have taken the high road and settled very early on and just paid the licensing fee. If you look at Mashable’s article title, “10 female photojournalists with their lenses on social justice.” That tells me they exploited Stephanie Sinclair’s image AND the TYTW message!
Off-topic: Iain, your website images are STRONG! Even though you’re an Australian living in Japan, you’re encouraged to register those (and other) posted images with the US Copyright Office. I searched the USCO database, but didn’t see any creative works registered under your name; please tell me if I’m mistaken.
If a US-based infringer is exploiting one of your images, that’s not within the scope of Fair Use, and you want money damages (vs. just getting the unlicensed image removed from the infringing third-party website via a DMCA “Take-Down Notice”), then your image really, really needs to be “timely” registered to have the necessary LEVERAGE(!) to push an American infringer to settle with you out of court.
This legal article explains why international creatives (Berne Convention signatory countries like Australia, NZ, Canada, UK, EU, etc.) need to register their creative media with the USCO (just replace “companies” with “photographers”): https://donahue.com/resources/publications/copyrights-registered-u-s/
Thanks for all the detailed info. It’s something I need to examine more closely, most definitely. Cheers
Also, watch just the first 20-seconds of Joshua Kaufman, Washington, DC copyright litigator, video to better understand: https://youtu.be/cBOKkrleY3Y
Mark LaMontagne wrote, “I have never read what happened in regards to an appeal to the 2nd Circuit Court of Appeals—perhaps Briebart settled.”
Goldberg v Breitbart did settled out of court.
Until people are prepared to pay for the service of something like Instagram then they will never have any real strength in this argument. If on the other hand one paid for the services of a photo sharing platform like Instagram then the T&C could include that © remains with the photographer and anyone who wants to use the images must pay for them. It's actually pretty simple. Getting people to pay is the tough option.
I would dump IG in a heartbeat, except for one thing -- a couple of months ago, I acquired a new follower who is a major player in the photo industry. If he ever chose to do so, he could, with a swipe of his hand, instantly push me and my work to the top of the heap.
Will that ever happen? Does he look at all of my photos? More than likely not, on both counts. But that's not the question to ask.
The question to ask is: Do I leave my work up, in the hopes he will, at some point in the future, make a move in my favor, or do I take it all down, kill the account, thereby guaranteeing the "big break" will never happen?
All points raised by Ian Stanley seems very valid and interesting. Wondering if the verdict applies to reels as well! What if someone used someone's image and posted as his own! It's not common but with this Mashable case, it could be widespread. What is even more damaging is you never know who is the original creato. If IG TOS allows it, then its game over. What is amazing is the diametrically opposite rules when compared to Youtube, where slightest infringment will be penalized with copyright strike.