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Privacy Law: Instagram to include right of publicity waiver in new terms of use

December 18, 2012 0 Comments

This one is pretty out there (and some have been calling the move business suicide) but it seems that Instagram will be the first company to require users to waive their right of publicity via the terms of use. Specifically, as per Instagram’s proposed updated terms of use:

Some or all of the Service may be supported by advertising revenue. To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you. If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata)) on your behalf.

The above is what is known as a person’s right to publicity (some states actually call it “right to privacy”) and there is a state law in just about every state (e.g., in New York it is Section 50 of the Civil Rights Law) which prohibits use of a person’s name, likeness, or image in connection with a commercial purpose without their express permission.

In other words, newspapers can publish your picture in connection with legitimate news reporting — that’s a basic First Amendment right — but Samsung cannot stick your picture on a Galaxy advertisement without your consent.

The above “right” is not just something celebrities use in order to protect the value of their brands. Albeit they use it quite a bit. But it is also something a “simple” citizen will want to use in order to prevent themselves from being associated with some commercial product with which they want no particular association.

Personally, I have never before seen a website’s terms of use or privacy policy expressly waive a user’s right of publicity.

Moreover, that language “if you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision” cannot possibly ever hold up in court. Meaning, if you are under the age of eighteen, then not only can you not consent to waiving your right of publicity, but technically I don’t see how you can “represent” in a legal contract that your parents or guardians have read and agree with the contract.

My opinion is that this clause was stuck in there by careless counsel (or maybe not, maybe Instagram wants to push the envelope and see how far it can go before it starts to hemorrhage users), but — based on the outrage I’ve heard so far — I don’t see this clause staying in the final terms of use update. Then again, maybe I’m wrong…

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