My (Foiled) Instagram Master Plan

InstagramLogoI thought I had outsmarted the evil geniuses at Instagram (now owned by the shareholders of Facebook). But they’ve outsmarted me instead. More on that in a moment.

Surely you’ve heard about how everyone is in a tizzy about how Instagram is out to steal your photos. This has raised such a hullabaloo (yes, I really do use that word), that it seems to have distracted many photographers from today’s scheduled end of the world (you did hear about the Mayan Calandar debacle, right?). But I digress. . . The bottom line is that the newly proposed Instagram Terms of Use pretty much say that Instagram (Facebook) can do anything they want with the photos you post to Instagram, including selling those photos, and that you get absolutely nothing of value in return.

Let’s get to the bottom of this whole Instagram kerfuffle.

I have more than a few thoughts here. Mostly I’m hoping to provide some perspective. You know, a calming influence from a guy who normally loves to stir the hornet’s nest.

I actually think there’s nothing evil going on here. Instead, I would use a different word: Stupidity. And I’ve seen this stupidity many times, and I’ve seen many photographers react (perhaps I might use the term overreact in some cases) to this same stupidity.

Now, I’m a pretty pessimistic guy, I assure you. But I tend to think this was a case of stupidity rather than an even photo-grabbing plan. Allow me to explain.

InstagramSnowNYCImagine, if you would, that you were going to start your own online photo sharing website. You’ll let pretty much anyone on the planet post photos on your site for free so those photos can be viewed by just about anyone else on the planet, also for free. Being a cautious fellow, you decide to consult with an attorney. And that attorney suggests you’re putting yourself at great risk, so you had better be sure that anyone who uses the site gives you permission to post the pictures, and also you had better be sure that you’re not going to be held liable if someone posts a photo they don’t own, or that could otherwise get someone sued.

As long as you’re imagining this scenario, imagine what the document would look like if you asked the lawyer to draft an ironclad end user license agreement. Pretty long, with lots of strong words, right? Heck, the End User License Agreement that covers my use of Adobe Photoshop (and other Adobe software) runs just over 10,000 words and spans 15 pages in a PDF document.

Anyway, if you’ll cut me just a little slack, I think we can all agree that in order for a company to feel comfortable with the whole publication-of-customer-created-content thing, they need to have a pretty solid agreement in place with their customers. And surely you can understand how they might go a little overboard in drafting that document.

So then the question is, do you really believe there was an evil motive involved? It’s possible.

I’ll give the Instagram/Facebook folks the benefit of the doubt, to a certain degree. I don’t think they planned to create some sort of photo stock library where they would license photos for money and share none of the proceeds with the photographer. But I would certainly believe that they figured they’d use the images here and there, for example as part of online advertisements. That’s not very cool.

Part of me figures a company would never do something like this, unless they were truly evil. There’s just too much risk of a big class action lawsuit, and frankly the benefits wouldn’t be all that significant in most cases. But you never know . . .

Anyway, I was really meaning to share with you my master plan for beating Instagram at their own game.

You see, I was going to start having some famous celebrity travel around with me at all times. Then I’d have them stand in front of anything I wanted to photograph for Instagram, so that their clearly identifiable face was included in every single photo I post. Then, if they sold that image for advertising use, without a model release, my celebrity colleague would sue, and hopefully share some of the proceeds with me. Brilliant!

Now, in fairness, I don’t actually know anyone (let alone a celebrity) willing to follow me around everywhere so I can include them in all of my Instagram photos.

But it gets worse. I actually read the Instagram Terms of Use. And if someone sues because of the content of my photo (you know, like that celebrity photo without the model release), I’m liable.

So, basically, with the new Terms of Use, Instagram can use my photos for anything they want, and even sell the photos. And if they get sued, I’m liable. And I get nothing. Except for free hosting of my photos, and free image-degradation and aging effects!

I actually wasn’t the least bit alarmed when I read the updated Terms of Use for Instagram. I’ve seen this sort of mistake countless times in the past when a company is trying to protect itself when it will be publishing customer-created content.

But something else did cause me to be a little alarmed.

If I were the boss here, and this thing blew up in my face, I would make an unequivocal statement that customer-created content would never be sold in any way, and I would clarify what we would and would not do.

Instead, on the subject of using your photos in an advertisement, Instagram co-founder Kevin Systrom said in part, “We do not have plans for anything like this. . .”

Uh, you just don’t have plans? But you’re not ruling this out? OK, now I’m worried.

About Tim Grey

Tim Grey is in the business of making photographers smarter and happier. He is the author of more than a dozen books on digital imaging for photographers, has written hundreds of magazine articles, and publishes the Ask Tim Grey e-mail newsletter as well as the Pixology digital magazine. He also speaks at a variety of events and leads photography workshops around the world.
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2 Responses to My (Foiled) Instagram Master Plan

  1. David H. says:

    I had empty walls in my photo gallery. I decided to let people hang their photos, good photos, feet photos, food photos, Starbucks latte, all were welcome, for free so that I would be able to attract more folks to view those photos and hang their own on my previously empty walls. Otherwise, nobody would come to my photo gallery with no photos.

    Now of course, I needed to make sure that I had evidence that I could use the photos on my otherwise blank walls to help attract customers to my shop. Since I had sold part of my stake in my cute little photo gallery to a huge corporation the demand a profit too. So I decided to have some lawyers draw up some sort of absurdly worded contract that would easily be interpreted as saying that if you hung your photos on my walls, I could sell them without paying, notifying, nor attributing the photos. Of course, I, like huge corporations being pure of thought and deed, especially where money is involved, would never, ever have dreamed of actually doing what the contract seemed to say I would do. Heavens no! And if I had, the courts would have said, yes, it was in the contract and you agreed to it, but don’t worry, we won’t enforce it. We were just playing around, just experimenting with a new way to make money, not that I intended to make money by selling the photos like it said in the contract.

    Naturally, the silly people who saw the contract misunderstood my pure intentions. Plus, the tricky legal language which had lots of words with more than 3 letters and sentences with commas and stuff was way above their heads. I, like my lawyers could not have imagined any controversy over this. This kind of thing had never happened before except at Facebook and…well, how were we supposed to know that this sort of language in contracts got all those companies in trouble? It’s unprecedented. Plus, my lawyers aren’t very smart, so they can’t figure out how to write a contract in language that doesn’t make folks think we are crooks.

    Now, I have empty walls again and I can no longer afford to provide a free service, as the folks who provided the pretty photos that I promise* I had no intent** to sell*** without telling, compensating, or crediting them, pulled them off. Now all I have is bare walls because I tried to protect myself.

    • Tim Grey says:


      Great analogy. Except in the case of comparing to Instagram, it would be more like allowing 100 million photographers to hang art in your gallery for free, then suddenly having the lawyers draft the Terms of Use.

      Pretty scary stuff!


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