By now I’m sure you’ve seen the post going around on Instagram where its users are attempting to assert their rights in their images and posts. It came in response to news that Instagram was changing its terms and conditions as if the change was surrounding Instagram’s rights in its user’s photos.
It was cute to see people concerned about their rights and staking their claim against Instagram’s policies, but it was totally ineffective. Here’s why – when people sign up for Instagram, they agree to Instagram’s terms of service. Within that fine print is the grant of a nonexclusive license to use and transfer copyrighted images posted to the platform. What that means is that Instagram can repurpose your images or it can license the rights to others to use your image, all without your permission or knowledge. You willingly granted the license when you signed up for Instagram. It was a requirement for using the platform.
By posting something stating you don’t grant them the rights to use your image, you’re really making a request to amend the terms and conditions as you agreed to them. And Instagram is free to ignore such request, to the extent they are even aware of its existence.
You can’t unilaterally bind someone to something they didn’t agree to or have knowledge of. In order to have a legally binding agreement (oral or written), there must be a “meeting of the minds” where the parties come to an understanding about something in particular and agree to carry it out. Simply posting that Instagram has no right to use your images is not entering into a binding agreement with Instagram because they have not agreed to anything.
One thing that should probably ease your mind is that Instagram isn’t likely to use its nonexclusive license or transfer its license to other organizations or individuals because it would simply deter people from using the platform. A concern down the line is that they’re holding onto this content to transfer and monetize off of later once the platform loses its appeal and they are no longer concerned with its users. Let’s just hope that’s not the case.
It’s also worth noting that you do have certain publicity rights in your name and likeness that is separate from the copyright in the image itself. So, while the picture itself as a work of art might be freely transferable and usable by Instagram, the rights in your image and likeness may not.