Instagram says it now has the right to sell your photos (Now that Facebook is in Charge)

Instagram Terms Of UseHave they gone too far?

Instagram’s photo sharing service says it has the perpetual right to sell users’ photographs without payment or notification, a dramatic policy shift that quickly sparked a public outcry.

The intellectual property policy, which takes January 16, comes just a few months after Facebook completed its acquisition of the popular photo-sharing site. Unless Instagram users delete their accounts before the January deadline, they cannot opt out.

Under the new policy, Facebook claims the perpetual right to license all public Instagram photos to companies or any other organization, including for advertising purposes, which would effectively transform the Web site into the world’s largest stock photo agency.

“It’s asking people to agree to unspecified future commercial use of their photos,” says Kurt Opsahl, a senior staff attorney at the Electronic Frontier Foundation. “That makes it challenging for someone to give informed consent to that deal.”

That means that a hotel in Hawaii, for instance, could write a check to Facebook to license photos taken at its resort and use them on its Web site, in TV ads, in glossy brochures, and so on — without paying any money to the Instagram user who took the photo. The language would include not only photos of picturesque sunsets on Waikiki, but also images of young children frolicking on the beach, a result that parents might not expect, and which could trigger state privacy laws.

Loud Media SolutionsAnother policy pitfall: If Instagram users continue to upload photos after January 16, 2013, and subsequently delete their account after the deadline, they may have granted Facebook an irrevocable right to sell those images in perpetuity. There’s no obvious language that says deleting an account terminates Facebook’s rights.

Facebook’s new rights to sell Instagram users’ photos come from two additions to its terms of use policy. One section deletes the current phrase “limited license” and, by inserting the words “transferable” and “sub-licensable,” allows Facebook to license users’ photos to any other organization.

A second section allows Facebook to charge money. It says that “a business or other entity may pay us to display your… photos… in connection with paid or sponsored content or promotions, without any compensation to you.” That language does not exist in the current terms of use.

Google’s policy, by contrast, is far narrower and does not permit the company to sell photographs uploaded through Picasa or Google+.

What effect do you think this new policy will have on Instagram and Facebook?

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