SlashGear 101: Does Instagram Own My Photos?

The short answer is no, Instagram doesn't own anything of yours (at the moment) – but once January 16th, 2013 rolls around, there's a few more words attached to that simple assurance. What we're talking about today is the Terms of Use and Privacy Policy updates to Instagram laid down this week that'll be taking effect on the 16th of January, 2013, many of them put in place to better tie them up with Facebook as their new owner. What many have found right out of the box is a few key phrases that appear very much to have Instagram taking control of the entirety of your library of photos hosted with them – we're going to talk briefly here about what their jargon actually has to say.

There are several segments in the Privacy Policy and the Terms of Use posted this week that will take effect starting on the 16th of January, 2013. The first of these bits of text is right up at the start of the Privacy Policy with "User Content" attached to it. This is where Instagram/Facebook tells you what you must understand from the moment you log in to Instagram:

By using our Service you understand and agree that we are providing a platform for you to post content, including photos, comments and other materials ("User Content"), to the Service and to share User Content publicly. This means that other Users may search for, see, use, or share any of your User Content that you make publicly available through the Service, consistent with the terms and conditions of this Privacy Policy and our Terms of Use (which can be found at http://instagram.com/legal/terms).

This means first that you, by signing into Instagram, agree that you're posting your content publicly. The follow-up clause there simply states that users other than yourselves also have the right to access the content you share "consistent with the terms and conditions" of the Privacy Policy and the Terms of Use – this is vague enough to fit many, many different models as the rest of the Privacy Policy text as well as the Terms of Use say many different things about your content that, taken alone, could mean very different things. Next is a piece of the 1 INFORMATION WE COLLECT segment of the Privacy Policy, right under "Information you provide us directly:"

"User Content (e.g., photos, comments, and other materials) that you post to the Service."

This means, basically, that Instagram acknowledges the fact that they host the photos you post. Also in the Privacy Policy is a rule about what Privacy actually means, hinging it on the ability of an app (whichever app you're using) to make it "private" and leaving it at that – this alleviates Instagram from fault should the app you're using make your photo public on accident – or if Instagram prefers, public because the app in question hasn't agreed with them on what "private" really means.

"Any information or content that you voluntarily disclose for posting to the Service, such as User Content, becomes available to the public, as controlled by any applicable privacy settings that you set."

Added in this privacy section is a note on how your photos will likely live on forever, no matter what you do:

"If you remove information that you posted to the Service, copies may remain viewable in cached and archived pages of the Service, or if other Users or third parties using the Instagram API have copied or saved that information."

Then there's the big doozy: in the Rights section in Instagram's new Terms of Use, number one on the list essentially grants Instagram (and Facebook) rights over your photos from top to bottom. Note the vagueness of the limits and the pointing back toward the Privacy Policy which, again, is vague in and of itself enough to have you speaking in legal circles.

"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/."

Then there's the lovely pointed length of text guaranteeing the Instagram and Facebook team the right to use not only your photos, but your own likeness, name, username, and metadata as well to sell to "a business or other entity" of any kind "to help us deliver interesting paid or sponsored content or promotions." That's the part where Instagram and Facebook own (and can sell) all of your photos.

"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."

And just for good measure, Instagram has made it clear that they don't have to tell you when they're working with paid services, sponsored content, or anything of the like:

"You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such."

What do you think? Sound like a set of rules that might have you thinking twice about taking photos of your prized unique napkin drawing? Or do you just take photos of objects and people you don't mind being sold without your consent and for profit with no monetary compensation given to you for the work?