Warning: Instagram's Proprietary Rights to your Content
Monday, November 29, 2010 at 8:02PM | Editor 
I just received an email from a fellow iPhoneographer, who brought to my attention the TOS (Terms of Service) of the Instagram app and service so many have taken a liking to.
Like many of you I joined Instagram, but after getting fed-up with seeing far too many pets and food photos, I stopped using the app and service, deleting all my uploaded photos, which now, having seen these TOS (which is nicely hidden away under "About" in the app itself) I'm glad I did.
Proprietary Rights in Content on Instagram
"Instagram does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the Instagram Services. By displaying or publishing ("posting") any Content on or through the Instagram Services, you hereby grant to Instagram and other users a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly ("private") will not be distributed outside the Instagram Services. Instagram and/or other Users may copy, print or display publicly available Content outside of the Instagram Services, including without limitation, via the Site or third party websites or applications (for example, services allowing Users to order prints of Content or t-shirts and similar items containing Content). After you remove your Content from the Instagram Website we will cease distribution as soon as practicable, and at such time when distribution ceases, the license to such Content will terminate. If after we have distributed your Content outside the Instagram Website you change your privacy setting to "private," we will cease any further distribution of such "private" Content outside the Instagram Website as soon as practicable. Some of the Instagram Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.
You represent and warrant that: (i) you own the Content posted by you on or through the Instagram Services or otherwise have the right to grant the license set forth in this section, (ii) the posting and use of your Content on or through the Instagram Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, and (iii) the posting of your Content on the Site does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the Instagram Services.
The Instagram Services contain Content of Instagram ("Instagram Content"). Instagram Content is protected by copyright, trademark, patent, trade secret and other laws, and Instagram owns and retains all rights in the Instagram Content and the Instagram Services. Instagram hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the Instagram Content (excluding any software code) solely for your personal use in connection with viewing the Site and using the Instagram Services.
The Instagram Services contain Content of Users and other Instagram licensors. Except as provided within this Agreement, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through the Instagram Services.
Instagram performs technical functions necessary to offer the Instagram Services, including but not limited to transcoding and/or reformatting Content to allow its use throughout the Instagram Services.
Although the Site and other Instagram Services are normally available, there will be occasions when the Site or other Instagram Services will be interrupted for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and equipment that are beyond the control of Instagram. Also, although Instagram will normally only delete Content that violates this Agreement, Instagram reserves the right to delete any Content for any reason, without prior notice. Deleted content may be stored by Instagram in order to comply with certain legal obligations and is not retrievable without a valid court order. Consequently, Instagram encourages you to maintain your own backup of your Content. In other words, Instagram is not a backup service. Instagram will not be liable to you for any modification, suspension, or discontinuation of the Instagram Services, or the loss of any Content."
Now I know the images produced by the app and uploaded to Instagram are low-res, their terms of service do still allow them to do what they like with your photos!!
Editor
It looks like Instagram are updating their TOS to address the concerns of their users.
Instagram in Discussion, Warning
Reader Comments (19)
Wow. Guess I should have read the TOS. Lesson learned.
Isn't Flickr's TOS similar to Instagram? This seems like "standard" wording for photo sites.
http://www.flickr.com/help/forum/en-us/83009/
@T-Will That's the standard TOS required to allow Yahoo to display your images on the Flickr website. In Flickr every image I post I make sure I have set as "All Rights Reserved". Flickr allows you to set your own usage rules per image you upload.
Instagrams TOS are the same as Flickr, Twitter, Facebook or any other service that you use to display your photo. You are granting them the right to display your images. Without it they could not put it up on their site without violating your copyright.
@Khürt Williams really? Guess you missed the part about giving other users permission to download, copy, edit, or post your photos elsewhere outside of the Instagram app. Hmm. Seems way beyond Flickr.
Facebook TOS is problematic as well, and that is why I don't post photos I sell there, I only post photos on Facebook that I don't mind being shared/edited/copied by others, mostly family and friends photos.
James Anthony Campbell,
If you are going to use a free service to promote your photography business you WILL be make a trade-off vis-a-vis your copyrights.
If you have problems with Instagram then you must also have problems with Posterous — the site you use to host your blog — since you have no way to prevent me from downloading your content.
Posterous TOS claims:
http://posterous.com/tos
a response has been given from Instagram's @Kevin:
http://instagr.am/p/aGs0/
Glyn, this is great reporting, and amazing to see such quick action on Instagram's part. Really terrific. The part that surprised me was that the terms granted the right for other people to modify photos. That seemed strange.
@Khürt Williams Yes, there is always a trade-off, I agree. It is about balancing exposure with securing your image rights. Flickr, Posterous, and Tumblr, I can handle the trade-off. I just don't want to use a service that explicitly allows other users to grab my content regardless of how I feel about it.
Here are the applicable facebook terms they do not include the draconian provisions abour sharing copying and modifying the content that are in the instagram agreement. If you are a pro who makes a living off of your content you would be well advised to avoid this platform...
# Sharing Your Content and Information
You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:
1. For content that is covered by intellectual property rights, like photos and videos ("IP content"), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License"). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
2. When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
3. When you use an application, your content and information is shared with the application. We require applications to respect your privacy, and your agreement with that application will control how the application can use, store, and transfer that content and information. (To learn more about Platform, read our Privacy Policy and About Platform page.)
4. When you publish content or information using the "everyone" setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).
5. We always appreciate your feedback or other suggestions about Facebook, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them).
This needs to be updated. Much ado about nothing, as the excellent Instagram team have already updated the TOS when users expressed concern.
There is no image protection on Flickr. You can download any photo using Windows Chrome by right-clicking. "All rights reserved" protects your copyright, but even if you choose the "no download" feature in Flickr, it's completely meaningless. That's why I took all my professional photos off of my Flickr site, hundreds of photos taken since 2005. They have also instituted a new feature of upsizing photos. Any photo you uploaded thinking the max size visible was 500px is now 640px. A great place for theft.
@JR, check the end of the post, where I updated it yesterday to reflect the change in TOS.
In the easily days, Flickr used to advertise about putting up full size images as a "backup". They were more in tune to the users then. When Yahoo took them over, it went to hell. I still use it but not nearly like I used to.
Facebook is a required evil. I get 25% or more of my leads from Facebook. But I post only some images and then they are watermarked and as small as I can get away with. I dont put full size images on my own site.
The only site that gets full sized images is SmugMug and those are locked galleries.
I thought they changed the TOS after everyone in the community made a big deal about it.
@ASHCROFT54, you are correct, which I have posted at the foot of the post in the follow-up.
I'm not worried since my Instagram pics sucks, being all "pets and food" and whatnot. ;-) I just use the app to have fun.
"The Instagram APIs are owned by Instagram. (hereinafter "Instagram") and are licensed to you on a worldwide (except as limited below), non-exclusive, non-sublicenseable basis on the terms and conditions set forth herein. These terms define legal use of the Instagram APIs, all updates, revisions, substitutions, and any copies of the Instagram APIs made by or for you. Instagram user photos are owned by the users (the photographers) and not by Instagram. All rights not expressly granted to you are reserved by Instagram.
Comply with any requirements or restrictions imposed on usage of the photos by their respective owners. Remember, Instagram doesn't own the images - Instagram users do. Although the Instagram APIs can be used to provide you with access to Instagram user photos, neither Instagram's provision of the Instagram APIs to you nor your use of the Instagram APIs override the photo owners' requirements and restrictions, which may include "all rights reserved" notices (attached to each photo by default when uploaded to Instagram), Creative Commons licenses or other terms and conditions that may be agreed upon between you and the owners. In ALL cases, you are solely responsible for making use of Instagram photos in compliance with the photo owners' requirements or restrictions.