You might want to think twice the next time you tweet or post a picture using Instagram. The New York Times reports that popular photo-sharing service Instagram issued an updated
privacy policy and terms of service on Monday, December 17, 2012, which are set to go into effect on January 16, 2013. While it is not unusual for service providers to routinely (and, sometimes, often) update privacy policies and terms of service, the Instagram updates are creating an uproar because of provisions that purport to allow Instagram to commercially exploit uploaded photos without notice or compensation to the photos’ owners. Given that Instagram is one of the most popular photo-sharing services and is routinely used by high-profile individuals and celebrities, there is a substantial question as to whether Instagram’s updates could violate a user’s right of publicity, i.e., the user’s right to control the commercial use of their identity or characteristics.
Paragraph 1 of the update, under the title “Rights,” provides:
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/. (emphasis added).
Paragraph 2 of the update, also under the title “Rights,” provides:
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. (emphasis added).
Other than deleting an account entirely, it is not readily clear whether there is a mechanism to “opt-out” of Paragraph 2, for example, by adjusting privacy settings as allowed in Paragraph 1. The language in Paragraph 2 seems so broad that it would encompass all pictures uploaded using Instagram, regardless of a user’s privacy settings.
Notwithstanding the updates, there is a substantial question as to whether Instagram’s use of uploaded photos might violate certain laws, such as the right of publicity. Broadly speaking, the right of publicity is the right of an individual to control the commercial use of his or her identity or characteristics, such as name, voice, signature or likeness. The right of publicity is the subject of state law and is not recognized in every state. It is also not uniformly applied. Among those states where it is either governed by statute or common law, the parameters and application of the right differs from state to state.
While Instragram users may be comforted by the knowledge that their identity and likeness may be protected by the right of publicity, we note that Instagram’s updates do not provide a mechanism for “notice” to the owner of the photo. In other words, you may never know that your photos are being used for commercial purposes or have the opportunity to enforce your right of publicity, if it applies to you.
Most often, cases involving the right of publicity relate to celebrities, but non-celebrities should also be aware that the right of publicity may apply. For our clients, celebrity and non-celebrity alike, ownership, control and potential commercial exploitation of identities or characteristics is of paramount concern.
We will continue to monitor developments concerning Instagram’s updated privacy policy and terms of service, and expected “conflict” with the right of publicity, and report further in future blog posts.
