Facing the Music: Protecting Photography in the Age of Instagram

Digitization, the internet, and social media have changed much about our world. Among them is the additional exposure—but also vulnerabilities—photographers and content creators face on Instagram. This article analyzes the issue and posits potential solutions from the music industry.

January 2020

The Robins Kaplan Business Law Update

Social media, much like the internet, is a double-edged sword. Nowhere is this more evident than through the lens of Instagram and copyright protections for images. Our copyright system was not designed with the internet in mind; much less could it have anticipated Instagram, a platform that monetizes images and creative works freely shared by its users. To date, the service has over 1 billion monthly active users, who together have shared 50 billion images. As Spotify and Pandora did in the music industry, Instagram’s wide reach creates a free and democratic platform for visibility while also engendering new copyright concerns for photographers and other content creators.

Ryan Muir, professional photographer and founder of Experienced Visuals,1 notes that social media like Instagram has “created a demand for momentary content.” For professional photographers to stay current, “visible, and relevant,” they must endure the “push for regular, high quality updates,” he says. Indeed, Muir states that an image may take “days, weeks[,] or months to create” but it “may take only seconds, or at best minutes to consume.” What’s more, there is limited protection against that consumption. Given that the copyright system has yet to permit a streamlined system for submitting content for protection and registration, photographers like Muir rarely have time to file for registration before the images go live online, where they are immediately susceptible to being made into screenshots and reused by all who have access. The push to share regular content and the lack of time to secure full legal protection thus become a self-feeding loop: Muir reports that the volume and rate at which photographers are now compelled to produce and share content renders it nearly impossible to register every new creation.

Further, under Instagram’s terms of use,2 account holders automatically grant Instagram license to use any content posted onto the platform. Indeed, even though Instagram makes clear it does not “claim ownership of [the] content that [users] post on or through the Service,” by using the platforms, individuals grant Instagram a wide range of rights—including “a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative work of [that] content.” That broad license continues until the user deletes the content or the account.

For casual users and professional photographers alike, these provisions mean that once content goes up on the platform—and for as long as it stays there—Instagram will be able to use the content for its purposes in nearly any way it sees fit, including by modifying it and sharing it with third parties.

For professionals and influencers seeking a platform that maximizes exposure, this is not always a bad thing: Muir, who serves mostly business, brand, and corporate clients, says that, often, the images he shares are commissioned precisely “for publicity purposes, so in many cases, wide distribution may be a benefit rather than a liability.” And Muir uses social media in part as a professional portfolio to market “the service of [his] photograph skills, rather than the … photographs themselves.” Thus, reuse is generally less of an issue as long as there is proper attribution.

But even in the realm where wide distribution is more a benefit than a liability, photographers would do well to note that, because Instagram seizes for itself a non-exclusive license, the mere act of posting content onto the platform may trigger liability if someone else already has an exclusive license to that same image. On this issue, Muir shares that it’s wisest to first consult contractual limitations on use and then ensure receipt of approval or permissions to share the commissioned work before doing so. Note, however, that regardless of prior permissions, the broad license that Instagram takes for itself would render it impossible for photographers to subsequently issue exclusive licenses to any other parties.

If disputes emerge, Instagram requires that, aside from an expressly stated subset of claims, disputes that users bring against it are to be resolved on an individual basis either in arbitration, the proceedings for which are private, or in small claims court, which generally has low monetary limits for damages. Indeed, class action and class arbitrations are not permitted, and trial by jury is expressly waived. To this belt, Instagram adds further suspenders: Its aggregate liability under suits “will not exceed the greater of $100 or the amount [the user] has paid [Instagram] in the past twelve months.” And Instagram binds users to an indemnity and hold-harmless clause, requiring all of them to “defend …, indemnify and hold [the Service] harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with these Terms or your use of the Service.”

Assuming one reads it, a user can opt out of the arbitration clause within 30 days of signing up for an account by sending a letter to Instagram detailing full name, address, user name, email address, and phone number associated with their account, along with a clear statement that the user is opting out of arbitration. Short of having a court deem the terms unenforceable or part of a contract of adhesion, however, users have few ways to escape the liability limit or the indemnity clause. And while the terms provide that copyright and trademark issues do not have to be arbitrated, those claims are still likely bound by the liability limit. This dynamic magnifies a common dilemma for professional photographers, who often find limited means of recovery against those using their content without permission or attribution—be it Instagram itself or other users on the platform. Indeed, this is a long-standing problem that has simply shifted form in the internet age: What was previously a problem of misusing print photos is now a problem of misusing digital ones.

Instagram’s bar against class actions is another symptom of a common problem that photographers face: Because photographers tend to work as independent contractors, it’s often difficult for them to sue collectively and effect systemic and industry-wide change. Indeed, it is the rare individual photographer who can rally sufficient resources to acquire legal protection against major corporations like Instagram or similar large organizations and sites. Suits related to copyright infringement of photographers are more likely to see the light of day when the claims are assigned to a third-party corporation that aggregates the copyrights of myriad individual photographers and has the resources to enforce those rights. See, e.g., Minden Pictures, Inc. v. John Wiley & Sons, Inc., 795 F.3d 997 (9th Cir. 2015) (holding that a stock photography company serving as the licensing agent for dozens of photographers had standing to bring suit against textbook publisher for violation of those licenses).

These issues—just a few of the concerns that have emerged from the intersection of art and social media—form another piece of the mosaic demonstrating that the copyright law landscape needs to evolve and adapt to our internet-driven world, including by making the copyright registration process more seamless and accessible. On this front, the music world may offer wise counsel. Just over a year ago, Congress signed into law the Music Modernization Act, which intends to reconcile copyright laws with the digital world and to ensure that songwriters and composers receive improved royalties when their works are streamed. The Act also created the Mechanical Licensing Collective, which, as of January 1, 2021, will manage a blanket mechanical license and collect royalty payments from digital services, which it will then distribute to the right copyright owners. This is not the first time the music industry has banded together in response to the difficulty that individual content creators face against industry behemoths. Nonprofit performance rights organizations like Broadcast Music, Inc. and American Society of Composers, Authors, and Publishers, for instance, protect their members’ copyrights by monitoring public performances and use, and collecting and distributing royalties. As holders of aggregate copyrights, these organizations can bring suit on behalf of their membership and litigate claims related to royalties and protections for online downloads and streaming. See, e.g., United States v. ASCAP, 627 F.3d 64 (2d Cir. 2010).

A similar group approach would behoove photographers, who need support in securing legal protections. While photography collectives do exist, they largely focus on collaborating on and generating commissioned work rather than championing legal rights and protections. As the internet and Instagram become more embedded in our world, photographers would do well to work alongside the natural evolution of the law by focusing on joining forces to seek greater protections in the law.

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