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Intellectual Property Law: NBC news uses Instagram images -- do users have any recourse to get paid for the images that are used commercially by NBCNews and the like?

  • In two instances, at least, NBCNews is using images provided by Instagram users, apparently without advance notification or compensation, for the 2012 election and Hurricane Sandy. http://gigaom.com/2012/11/03/how-nbc-is-using-instagram-to-report-the-2012-election/ What I want to know is how NBCNews gets away with it without compensation for Instagram or its subscribers? Instagram's TOS (http://instagram.com/legal/terms/) [1] can be read more than one way where subscribers' rights to images are concerned. (Note the "does NOT claim" versus "non-exclusive, fully paid and royalty-free, worldwide, limited license to use [...] language.) The only solution for me is to remain private. (Last line in that section of the TOS.) This seems like either a massive invitation to some kind of lawsuit or a mass exodus of users of the service who want their work seen by a wide audience without getting ripped-off in the process. [1] 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.

  • Answer:

    NBC's use of these images probably qualifies as fair use under US copyright law. Any suit would be between the copyright holder and NBC news. Bringing Instagram's TOS claim of rights into the matter is a red herring. It really has nothing to do with it. These claims are common in web site terms of service and are intended to assure that Instagram itself has all of the legal rights necessary to operate and promote their service.

Norm Soley at Quora Visit the source

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Looks like some case law just came up for that. From Rueters; http://www.reuters.com/article/2013/11/22/us-media-copyright-twitter-idUSBRE9AL16F20131122 It's not fair use if used commercially without a contract. "... A federal jury on  Friday ordered two media companies to pay $1.2 million to a freelance  photojournalist for their unauthorized use of photographs he posted to  Twitter. The jury found that Agence  France-Presse and Getty Images willfully violated the Copyright Act when  they used photos Daniel Morel took in his native Haiti after the 2010  earthquake that killed more than 250,000 people, Morel's lawyer, Joseph  Baio, said. [...] Several news outlets that published Morel's  images previously settled with the photographer for undisclosed amounts,  including the Washington Post, CBS, ABC and CNN."  [...] The AFP editor, Kaufman said, believed the pictures were posted for public distribution. AFP  filed the lawsuit in 2010 against Morel, seeking a declaration that it  had not infringed on his copyrights, after Morel accused it of improper  use. Morel then filed his own counterclaims. AFP  had initially argued that Twitter's terms of service permitted the use  of the photos. But Nathan found in January that the company's policies  allowed posting and "retweeting" of images but did not grant the right  to use them commercially.  " Added; Here's a good article discussing copywrite law in view of this settlement, "Understand the terms of service on a web host before you upload your images. " !! http://www.pbs.org/mediashift/2013/01/who-really-owns-your-photos-in-social-media-updated-2013-edition025/ Another update- the TOS for Instagram shown in the article seems to have been updated. It does not seem to grant such an expensive 3rd party right. Personally, I wouldn't use them as their contract still leaves room for squirming out of things if they partner with media, but you should read it.

Lynn Harrington

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