There has been a bit of a furor over Instagram’s new terms of service, in which I unwittingly took part – well, perhaps half unwittingly. I jumped on the bandwangon of outraged Instragram users and posted directions on how to delete your account and backup your photos on my Twitter, before getting the news (also via Twitter) that they’re backtracking on the offending language of being able to give your photos, profile information, geolocation information, and other metadata to advertisers (‘third parties’) for their use, without compensation, presumably in advertising (‘enhanced advertising’ if you will). I seriously considered deleting my account, despite my abject love of the service. As a semi-professional photographer, it’s been amazing for getting my photos online quickly, taking more shots than I would otherwise, and self-promotion. I’d be very sad to have to leave.
Yet some of the furor has been over people worrying that their kids’ photos would be used without their knowledge or compensation, even if they were private photos. I’d like to take this chance to remind people of publicity rights, the right to not have one’s likeness used to promote products or otherwise, without their permission. This applies to everyone, not just celebrities. So the use of kids’ photos without permission is flat-out illegal and Instagram could be sued for doing so; given this, it’s extraordinarily unlikely that this would ever happen. People worried about kids’ or friends’ or family’s photos have nothing to worry about.
Still, there is some pushback on the part of media companies who want to use your photos as they see fit. (Note also that we all need to be reminded that we still hold our copyrights – what we’re granting is a non-exclusive license, not a copyright transfer, so people need to not be flipping out about this either. You still own your stuff.) Quoted from an article I came across:
Right of publicity laws protect people, both celebrities and everyday citizens, from having their names or photos used for commercial purposes. However, using a person’s name or photo for news reports is not a violation of these laws, according to the Digital Journalist’s Legal Guide , which was produced by the Reporters Committee for Freedom of the Press.
In fact, Facebook defended its “sponsored stories” as “newsworthy” in the California lawsuit, saying that people’s brand preferences should be considered “news” to their Facebook friends.
The fact that Facebook is arguing that this is “news” is interesting and disturbing. I really hope they lose this lawsuit, because otherwise this would be a massive blow to publicity rights, and thus people’s control over their own likenesses. This is an important right in terms of privacy, one that predates the digital world, and is crucial to people’s sense of self-determination. I am going to be following this story closely, although it turns out that Facebook wants to settle a class-action lawsuit that would give only $10 to each offended individual. That is, in a word, wack.
But for the meantime, worry about services using non-likeness photos, because hopefully Facebook will lose and we will only be left with the serious issue of terms of service dictating non-exclusive licenses of copyrighted material.
What I’d really like to see is a lawsuit involving that, to see if terms of service are actually binding contracts, but I haven’t heard of any court cases of this nature so far. I’d like to hear from my readers who are more knowledgable than I am in this area, and who may have heard of court cases pending that might answer this question for me.