This seems like an overreaction. Or perhaps more accurately, this seems like a too-late reaction.
Instagram's TOS before these sweeping, far-reaching changes was already hostile to photographers. You granted Instagram a transferable, sub-licensable, perpetual license that has no expiry or termination condition, ever the moment you uploaded something.
The terms of the license you grant Instagram is about as broad as it gets, and reaches substantially further than just about any reputable photo sharing service out there.
For example, Flickr and 500px's TOS gives them license only as long as you hold the account and the image hasn't been deleted. Deleting your account or the photos themselves is revocation of their usage rights. Instagram is bound by no such rules.
By posting to Instagram before the new TOS NatGeo already exposed their photographers to tremendous IP risk - one can only hope NatGeo themselves hold the right to grant an irrevocable, perpetual, sublicensable license to the photos in the first place.
I'm glad to see companies with photographer-hostile TOSes getting called out for the tremendous overreach in their legalese, but this isn't really new, Instagram was like this from the get-go.
It's an overreaction with only upside though, since the only two possible outcomes from their overreaction are (1) TOS remains the same or similarly ominous, or (2) the TOS becomes more benign as a result of NatGeo's and others' overreaction.
If (1) is going to happen anyways, then there's no downside to at least posturing an overreaction.
I tell you why, because their ToS is malformed otherwise you wouldn't have to trust them, you would only need to agree that the contract you signed with them is respected accordingly, by them as well as by you.
>their ToS is malformed otherwise you wouldn't have to trust them //
License terms have a certain purpose behind them just like the law and just like the law unless you specify ever possible scenario then you have apply generic terms. The level of depth varies but a license that considered all possibilities - and so wasn't 'malformed' would be very difficult to work with.
So a company needs a certain level of freedom so they can disclaim copyright infringement in circumstances such as showing adverts alongside your work. But that level of freedom means they could by the letter of the agreed terms use your images for advertising, but the company have told you that's not the purpose of the clause and that they don't intend to do that.
So you're fine as long as the company continues to act ethically. There's possibly an implied license, worth the paper it's written on, etc., etc.. Should they really go in to specifying what "alongside" means and the relative proportion of advertising text on a page and whether advertising overlaps; whether an interstitial (lightbox) based ad would be allowed if it showed some of your image through the semi-opaque background; whether adverts for the site that say had a glimpse of one of your images in the background were allowed; suppose there's a trade show and you happen to be friends with a speaker and your image shows in their timeline ... is that within the letter of the terms. And so-on and so-forth.
This is why trust is important to save wrapping up our entire lives in legalese.
If a company respects it's clients as people, then even if there is a loophole in the ToS whereby they can screw those people up they won't.
> "So a company needs a certain level of freedom so they can disclaim copyright infringement in circumstances such as showing adverts alongside your work. But that level of freedom means they could by the letter of the agreed terms use your images for advertising, but the company have told you that's not the purpose of the clause and that they don't intend to do that."
The beauty of legalese is that we can have our cake and eat it too.
In fact this is precisely what many image hosts do - they enumerate the allowable uses for your copyrighted material, instead of imposing a blanket, kitchen-sink allowance.
If you want to profit off of advertising while displaying my photo? Put it in the document, that's fine. Just don't go around asking me to essentially sign all of my copyright over to you.
National Geographic has held interest in the rights to photographs for a quite some time. They have long and continuing relationships with experienced attorneys specializing in this area. They have nothing to gain from cutting off their brand from the general public.
Precisely my point - NatGeo is historically very conscientious of the IP surrounding their photography, but not this time.
Before the latest Instagram TOS controversy their TOS was already a travesty for photographers, where was NatGeo's objection prior to this? And why did they grant irrevocable, sublicensable, transferable licenses to a whole bunch of photographs already?
This seems like jumping on the bandwagon way too late. NatGeo should never have used Instagram with the copyright license as it was - the latest TOS changes simply made an already overreaching agreement even more egregious.
It is my understanding that historically, terms of service are derived from the fact that a service provider might host multiple copies of an image across different servers and transfer the image between servers, as well as generate and transmit many copies to user's browsers.
In other words, the basis of the TOS was what was necessary to provide the service and what was monetized was the service.
In contrast, my understanding of the new Instagram TOS is that it could readily allow for the direct monetization of the content outside of the service provided to the photographer. It requires the copyright holder to give up rights beyond what is strictly necessary to provide service to the user.
However, in a sense I agree with you. Google's new standard terms of service appears to allow the possibility of something similar in so far as the user grants usage rights to future Google services.
Why do you assume photo redistribution is National Geographic's concern? Perhaps they are more worried about the ToS changes allowing Instagram to sell off use of the National Geographic brand within the service.
The ToS currently read "Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content". Switching to "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" plus "You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such" seems to give Instagram greater latitude to advertise with the identities of the service's users rather than just the content they have shared.
And Facebook appears to currently be on another round of testing the boundaries. Today, we learn that the messaging restrictions we set will no longer be strictly respected. The thread where I happened to learn of this:
'@NatGEo is supspending new posts to Instagram. We are very concerned with the direction of the proposed new terms of service and if they remain as presented we may close our account.'
(The Fast Company article does not provide any additional value, it does not even quote the original statement.)
"And though Instagram CEO Kevin Systrom has had to react and has promised this won't happen, at least one big publisher isn't buying it: National Geographic"
Why does Kevin have to 'promise' not to use your photos? This is what terms and conditions are for, so that 'promise' isn't worth the paper it's not written on.
"I expect "the masses" to react this way, but not actual entities who should have legal counsel."
National Geographic has undoubtedly run the new TOS past legal council. Did yours advise you differently? If so, are they the firm of Dunning and Kruger?
Can't say undoubtedly that Nat Geo - or more likely, their social media grunts - ran it past legal. Possible because the response is open ended. On the other hand I'd expect an organization like that to have a more thought out and tempered reaction.
I did call my legal counsel (he is neither Dunning nor Kruger) about the TOS but I'm not protecting precious photographs here so the advice was a little different.
I am not a lawyer nor a professional photographer.
It is my understanding that the sort of rights one would grant a magazine such as National Geographic for a photograph would be limited to derivative works over which the magazine has editorial control, e.g. an advertisement for the magazine and other situations associated with their brand.
It is my understanding that typically, one does not grant rights which would allow the magazine to grant unlimited rights to third parties. In other words, National Geographic may allow the use of one's photograph of orangutangs by the Museum of Photography to promote a "Photos of National Geographic" exhibit. They may not grant rights to the photograph to The Orangutang Club and Dancehall.
Before a company like National Geographic puts any photographs on the web, the lawyers have to make sure that such use is consistent with their rights. I suspect it is quite possible that older photographs such as those from the 1960's might not have adequate rights, or that those from top photographers might also be more encumbered.
What National Geographic's decision appears to mean is that Instagram's new terms of service are possibly or likely to be incompatible with their rights to particular photographs.
I'm sure you're correct as far as the photography rights go. And I think we all know what their decision means. I just find it hard to believe that their legal counsel said "post a stern textgram photo with X-Pro II so they know we mean business."
It all seems less about rights and more about drama.
The underlying thing that is broken here is TOS's in general.
They are obviously not being read and they actually rely on not being read. There is no cost in putting something in your TOS unless makes headlines. It reminds me of medieval merchants buying prayers. The Southpark episode on iTunes tTOS is the only correct response to this ridiculous situation.
In practice, this is not a reasonable way of making an agreement between users & sites.
Which is why in Germany there's been a law since 1977 that declares any part of a TOS void if it's surprising and could not have been anticipated by an end user, given the context.
It's interesting to see this gain momentum. IANAL, and I am not an active Instagram user, and I don't particularly have a dog in the hunt. However, I do think there's a public relations lesson to be learned here.
Instagram modified their TOS in (I assume) what they thought to be something acceptable for their users. Otherwise, why do it at all. Now, the backlash begins. At first, we get facebook users complaining about it, then the blog articles start rolling in and the link aggregator sites link to them. Now NatGeo is pulling out. Is this the high water mark? Can Instagram do anything beyond their post a day or two ago? Should they do anything?
I'm reasonably certain that there are many people at Instagram that wish this whole debacle would just go away. I'm not sure if there's an easy way out of this for them.
I believe a lot of well-known people will start deleting their account as well. I don't think that Selena Gomez, for example, is comfortable with her pictures being used for advertisements without her consent.
I highly doubt that just because its supposedly covered under TOS that they'd start using celebrity Instagram pictures against their will. There are plenty of reasons for them not to.
The new ToS seems to imply that you are going to give your house key to a known thief/escaped convict and you are also thrusting him with not stealing anything from your house.
Seriously? How certain is anybody that with the new TOS the thief won't steal anything from their house?
If the thief wasn't going to steal from the house in the first place then why its called a thief that is even authorized to steal your goods?
Why is there such a ToS in the first place if the thief is incapable of stealing?
Wow, have you been living under a rock? Instagram has over 100 million users and got sold for $1 billion to Facebook and you never heard of it? Next you will tell me you never heard of Facebook...
I was located in Europe up until 2 months ago btw, so that really isn't an excuse.
Instagram's TOS before these sweeping, far-reaching changes was already hostile to photographers. You granted Instagram a transferable, sub-licensable, perpetual license that has no expiry or termination condition, ever the moment you uploaded something.
The terms of the license you grant Instagram is about as broad as it gets, and reaches substantially further than just about any reputable photo sharing service out there.
For example, Flickr and 500px's TOS gives them license only as long as you hold the account and the image hasn't been deleted. Deleting your account or the photos themselves is revocation of their usage rights. Instagram is bound by no such rules.
By posting to Instagram before the new TOS NatGeo already exposed their photographers to tremendous IP risk - one can only hope NatGeo themselves hold the right to grant an irrevocable, perpetual, sublicensable license to the photos in the first place.
I'm glad to see companies with photographer-hostile TOSes getting called out for the tremendous overreach in their legalese, but this isn't really new, Instagram was like this from the get-go.