December 2012 Archives

Santa's elves aren't the only ones who have been working feverishly before the holidays. The lawyers for Instagram recently posed new Terms of Use for the popular photo-sharing service, and after a public backlash put Instagram on the Internet's naughty list, they're back at their office workshops hammering out another revised draft.

Counterfeit Chic has had several inquiries from fashion folks uncertain about what Instagram's new terms will mean for them.  If the terms as written take effect on January 16, will Instagram have the right to sell their names and likenesses without permission?  Would it be possible for a brand to use a model in an ad without paying a fee?  Could a competitor legally copy a photographed design or trademark?

Although Instagram --or its PR team -- insists that it never intended to do any of these things, the fashion community has a legitimate basis for concern. There are plenty of instances where companies felt free to exploit others' names and likenesses without permission or payment, so why trust a company to respect your rights when its lawyers expressly take them away?

Better watch out ...

As South Park cleverly noted in its classic (albeit crude) episode on iTunes updates, most people don't bother to read online terms of service.  However, the announced changes to Instagram's terms illustrate why this can be a big mistake.  

Posting a photo on any social network site raises at least three significant legal concerns:

  • ownership of the photo itself;  
  • right of publicity in regard to the use of your name or likeness; and
  • privacy and intellectual property rights in any other material posted to or generated through use of the site.

Ordinarily, U.S. copyright law protects photos, and a patchwork of state laws recognizes each individual's right of publicity, limiting the use of your name or likeness without permission.  But accepting terms of service like Instagram's can wipe out those legal protections with a single click.

What's naughty and nice

For anyone wishing to keep control the rights in material on Instagram, the first four paragraphs in the section entitled "Rights" raise substantial problems.