Instagram vs. Your Shot: When comparing their Terms of Service, what’s the real difference?

Instagram_change_terms_service

This big picture grab by Instagram sparked a firestorm of protest on the web today, including some threatening words from National Geographic.

First, though, here’s an excerpt from Instagram’s revised Terms of Service:

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.

From Instagram’s description of “proprietary rights”:

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 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.

Late today, National Geographic posted this:

NatGeo_Instagram_suspending

Here’s what puzzling: National Geographic’s Your Shot feature — which enables amateur photographers to share their photographs on the NGS website — includes the following language in its Terms of Service:

5. You retain all of your ownership rights in material you upload, comments you post, or other content you provide to the Site (“User Content”). By uploading User Content, however, you grant National Geographic (which includes its subsidiaries, affiliates, joint venturers, and licensees) the following rights: a royalty-free, worldwide, perpetual license to display, distribute, reproduce, and create derivatives of the User Content, in whole or in part, without further review or participation from you, in any medium now existing or subsequently developed, in editorial, commercial, promotional, and trade uses in connection with NG Products. National Geographic may license or sublicense, in whole or in part, to third parties rights in User Content as appropriate to distribute, market, or promote such NG Products. ….”

Which begs the question: Why is it okay for National Geographic to profit from pictures uploaded by amateur photographers to Your Shot, but it’s not okay for Instagram to profit from photos uploaded by National Geographic?

Happily, the fix for Your Shot is an easy one: National Geographic should revise its Terms of Service, and share any revenues generated by Your Shot photographs with the people who actually took and submitted the pictures. Say, 80% to the photographer, 20% to the Society. But only NGS members would be eligible to participate in this revenue sharing, which would give people an incentive to join our Society.

Who knows? Maybe that’s the sort of benefit that Amy Maniatis will offer when the Society’s new membership program is rolled out in… well, it should be very soon.

  • Guest

    Good question Alan. Did hear this morning that Instagram is backpedaling on their terms, not sure yet what the change is.

    • I heard the same thing. To me, though, what’s interesting is NG’s response: The Society doesn’t want Instagram doing to them what they’re already doing to Your Shot participants. And while Instagram may modify its TOS, will NGS?

  • Joe Smith

    In NG’s case there would be no revenue to share of they are promoting products produced by the Society. If it’s a licensee, they can charge the licensee are share the revenue. That’s just picky info — your overall point is well taken. On one hand, these services are free to the user, even commercial users. These TOS’s become challenging in many ways. For instance, as a publisher I commission and license original art. The license I write gives me permission to reproduce the art not only on my publications, but in promotion of those publications. So I post it on my company’s Facebook page. If Facebook were to take that art and use it in a context separate from promoting my publications it’s not a use covered by my license.

    • Joe – Thanks for your message. I realize that implementing any revenue sharing plan would have its challenges, esp given scenarios like the one you outline re Facebook. My point is that NGS could do a far better job saying to members & potential members: We are on your side. We will try to create value for you. We will leverage all of our services and infrastructure to benefit you because… well, because it’s your Society.

      A pipe dream? Maybe. But isn’t it worth trying, esp since most of the other options re revenue aren’t all that appealing?

  • I think the difference is a clear “bait & switch”

    The problem isn’t necessarily that they want to use your stuff for profit, it is that they weren’t doing that before…they waited until they got a huge loyal user base and then CHANGED their TOS.

    If that was originally in their TOS, then they likely wouldn’t have become as huge as they are.

    • Tommy – I agree wholeheartedly: Instagram never would have become the juggernaut it is if they’d tipped their hand too early. A similar point was made in this video from The Onion — The Power of Selling Out.

      National Geographic also obviously objects to the substance of the change. That is, NGS doesn’t want Instagram (Facebook) to profit from photographs that National Geographic owns. NG resents what is, in effect, a copyright grab. My point is: Why then does NGS think it’s legitimate to take other people’s photographs & make a buck off them?

      Given all the challenges that publishers now face attracting and maintaining an audience, it seems like Nat Geo should be saying: What can we give our users? What value can we help them create as a group that they cannot create on their own? Which is why I brought up the revenue sharing idea.

      Thanks for stopping by… and for your comment.
      best,
      Alan

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  • Tony O

    And so, two years after asking this important question, where are we now? Has NG closed their account with Instagram or did Instagram mend it’s skewed, dollar-driven thinking back onto the ethical track?

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