Tuesday, December 18, 2012


Jason Mazzone

Yesterday, Instagram, the popular photo sharing site owned now by Facebook, announced new terms of service effective January 13 under which Instagram purported to gain the right to license to advertisers photos users had posted to the site unless users opted out of the arrangement by closing their accounts. Instagram users around the web immediately voiced strong opposition to this proposal to make money off their photos. The collective outrage worked. A few hours ago, Instagram abandoned its plan with a face-saving announcement that the language contained in the proposed terms of service had been unclear and misinterpreted and that the company had no intention of hawking users' photos. I have written a lot about overreaching claims with respect to intellectual property. Even so, Instagram's audacious plan--to confer upon itself by a contract of adhesion licensing rights and immunity from violations of rights of publicity claims--was extraordinary. More striking, though, was the 24-hour correction. Imagine if government worked that way.          


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Terms of use agreements are ordinarily enforced are they not? And I don't get the point about immunity from rights of publicity claims -- if there's a license, where's the violation of the right of publicity?

@AF: Use of a person's image in advertising can give rise to a right of publicity claim. In this case, the right is of the person in the photo not of the photographer so a license to use the photo itself makes no difference.

Like your copyfraud stuff, dude.

Was watching MLB and heard that insane overreach and thought, uh, that would never stand up. Why do they even pretend it would? Did a web search and found your stuff.

I would agree that copyfraud is not just annoying, it's corrosive, expensive, extortionate. We have a compelling interest in exposing it and fighting it. Sadly, most of it goes without challenge or even notice.

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