Saturday, May 28, 2016

InstaDamn or Instagram?

I know what I am. I am an antiquity. I'm the last hold-out from a bygone era of dusty old principles; principles that are slipping away into obscurity and short on digital relevance. Nearly everyone I know has joined Instagram. I fully support and respect the reasons that they do so for THEM. But I'm still holding out for something better. Those icky Terms of Service are still terrible and carry a stench of foul but subtle manipulation that preys upon the wishful thinking of it's would-be users.

Let us first briefly state what social media is. Social media is about those who see and those that want to be seen. It's about finding and sharing new ideas. It's about discovery, opportunity and connection to other people, other places and things. But it is also a he-said she-said environment. It can be petty and cruel. It can be used to bully, prod and poke. It can be used to incite fear and divisiveness. It's also a medium for the trivial and pointless driveling rantings of the would-be obscure. It's a sanctuary for discourse compressed down to snapshots selfies and what has become barely a semblance of language edited and shortened for mass consumption in the briefest time. We're a society on the move. No one reads anymore. Nearly no one retains information, have conversations of philosophy over the nuances of life or the human condition. But unlike other avenues of connection in the past, social media did not fulfill a need. Social media created a need. A need for instant gratification for a society overrun with millions of distractions seemingly per second,  a short attention span and even shorter memories.

Yet, all is not in despair. While I may paint a world destined for a dystopian future of mindless beings, social media has created opportunities. It has provided a means for connectiveness to people and things that may have otherwise never crossed paths. Millions of business dealings have grown from social media. Businesses market and promote thru social media but no longer because they want to but more-so because they need to. It is quite frankly where people are and where they commune. But the details of that is for another post. This is about Instagram within the context of Social Media at large and why I feel like the last hope for mankind's sanity as I hold out indoctrination into the herd.

About four years ago Instagram was hit with what appeared to be a PR nightmare. I'm paraphrasing here so feel free to correct me. They modified their Terms of Service that essentially implied that any and all Content could be used for advertising by them and that you are agreeing that you have full uncontested rights to the Content and if it should be that you do not have such rights then all legal responsibility for such use by THEM falls back on you. Basically anything you uploaded was theirs to the extent they could market, promote, distribute, possibly sell or pretty much do anything with your own Content as a condition of using their app and if they are sued due to your misrepresentation of that fact then you would be liable. But in turn, you cannot and will not use any such Content created by them. People were outraged that a company would basically take your Content and use it commercially without any consideration to you. Or is there consideration? Of course. Read on.

Wait a moment! Don't you have to agree to the Terms of Service before using the app? It is your choice to simply say NO correct? That is correct. The consideration they're offering is use of their service. Yet, the social media community was outraged as was I, even though I had and still do not have intention of using the service. It was the blatant callousness of their claim to Content that doesn't belong to them that irked me. That were asking for people to agree to give them use of my work without anything further than an app use? I couldn't fathom that. Why would I do that? It doesn't even make sense I thought? Millions of people apparently don't feel that way. They'll give away anything for the promise of consecutiveness. I had no idea people felt that hopeless and alone. However, I was outraged over the 'feigned' anger from the general public as well. People could simply say No and move on to an alternative service. I did. But they had much rather bitch and moan; cry and plead for what they perceived as a lack of options as if Instagram was some kind of public utility necessary for social, economical and financial welfare of humankind. I was sickened by people's naïveté.

As someone that creates and/or works with video, photo and web media each day, I am both intrigued and disgusted how Instagram placated the masses with a dumbed down version of the same Terms of Service language. Sure they tweaked it. They sought to soften the blow of their Terms of Service. It was as if they took out the well written legalese and simplified it to the dumbed down vernacular of social media from which it came. Remember I'm paraphrasing here but put simply, they nearly said the exact same thing as the original language; at least in areas that are relevant such as use of Content. You are still responsible for any legal problems they incur for use of Content you upload that may not have been yours. No problem for me because I am a Content creator. But Instagram can use your Content without any costs to them. As part of agreeing to the terms of service, you have to accept that ALL CONTENT is owned by you and that you have rights to license the Content for use by them. Now what does that mean? It means you have to own copyright to what you upload or be legally responsible for such upload in every conceivable way. No picture I have ever taken to date has me willfully licensing it for use by a third party without my written consent with consideration. So how is it that Instagram can ask someone I have photographed to give away and license Content for use that does not belong to them? They just do. They don't care because their Terms absolves them of any wrongdoing. It puts app users at legal odds with the original Content creators they take images from. Yet, Instagram washes their hands of it and puts all blame on the user - the user of their service. It's a brilliant strategy by Instagram. Yet, it is a silly and even irresponsible strategy to even use the service by someone that is not the original creator of the Content.

If I create a photograph, upload it to Instagram, run through or choosing to bypass their icky and terrible photo filters and then on the off-chance they use it in an ad promoting themselves (or affiliate) on a huge billboard or television ad, then I'm the idiot for using their app and not getting paid for that use despite my Owning the Content. I would never willingly assign those rights without some consideration. Now let's say a person uploads a photograph taken or created by a photographer (me). Chances are the uploading person DOES NOT own and cannot license that Content to someone legally. If by some chance I decide to sue Instagram for Copyright Infringement, Instagram would have the person who did the upload bear the brunt of legal fees - as they should (according to their terms). If you're an Instagram user then that is what you signed on for. What if Instagram uses the images in a manner that violates our Model Release/Image Use agreement that you signed? Ever thought of that? That means you, (the app user) are liable. Not Instagram.

Why would I care if Instagram uses my Content, that I own for commercial purposes and make money from it? Because it is mine and to use and promote how "I" see fit. I cannot and will not GIVE that away. My Content has marketing value to me. It has marketing value to the people I photograph and create it for but by any extension I would not GIVE that value away nor assign it to be given away. I've read all the arguments as to why I should be using Instagram to promote myself. I've heard it from some of the leading photographers in the Industry. The problem is, is that they ARE photographers and the Content we upload IS OURS to do with as we please. I know and acknowledge why a model would do so. They need an avenue to promote themselves for contacts and maximum exposure. But there in lies the problem. It is seldom if ever the model's CONTENT to upload. They do not Own the Content in most cases. Yet, some photographers allow such upload on services like Instagram as a condition. But as you have now been able to deduce, doing so creates a potentially serious legal Conflict of Interest between the person uploading (model), the photographer and Instagram. Who is liable? Instagram says they're not. The photographer will cry Copyright Infringement because they did not expect to see their image on a commercial they did not get paid for. Or they'll see an image of theirs horribly edited or modified from it's original pristine version. Who is left in the middle? Everyone and no-one. Instagram will have the most lawyers, the model will be left broke trying to defend against Instagram and the photographer will walk away pissed off and likely tied up in a court case that may possibly go nowhere. Everyone but Instagram will be broke as a result. But the photographer does have some recourse under Title 17 Copyright Law and Content Registration which may allow the collection of legal and court fees. But guess where that costs will come from? You guessed it. More than likely the person using the app because they are the ones that claimed to Own the Content that was used.

This is a rare and improbable scenario. However, it is being highlighted here to emphasize how a Terms of Service agreement from an app runs contrary to established legal Copyright Law regarding Content use and Ownership.

So my conclusion - Instagram just isn't worth it for me. On the off chance of some kind of grand exposure that will propel my business to the next level that would make me want to give away Content on that level..? I think NOT! That's the kind of vanity that gets people used. Sure I'll still own the Content as Instagram professes. But I ask, why would I even care about Owning the Content if I cannot control when, how, where and to what extent it is used? That negates the benefit of ownership and that is where Instagram's Terms of Service is both ingenious from their own business perspective as well as extremely dangerous. They have successfully exploited a strong characteristic of human behavior; that need to be seen, to want to be loved and adored, to be popular, wealthy and have a huge fan following and in a sense they have it so we will even consider giving away some of our most prized Creations just to be relevant in a world dominated with digital noise and clutter.

Not for me; Not Yet and certainly Not today.

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