A class action lawsuit was filed on December 21 in San Francisco against the photo-sharing social network Instagram in response to its controversial terms of use changes. (Funes v Instagram Inc et al, 3:12CV06482 (N.D. CA).

The controversy began over new language, to be effective January 19, 2013, that appeared to reserve for Instagram broad rights to user’s photos and severely restrict users’ legal remedies. (See terms of service reprinted in complaint, 2012 WL 6640774).

In response to widespread criticism and user departures to competing services, Instagram CEO Kevin Systrom retreated and “clarified” the proposed new terms of service in an Instagram blog post:

 ”I want to be really clear: Instagram has no intention of selling your photos, and we never did. We don’t own your photos – you do.”  ­­­­

Remaining in the terms slated for January however, are provisions that reserve broad licensing rights in users’ content to Instagram:

 “…you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content you post on or through the service…”  (iPhone app “Terms of Use” effective January 19, 2013, viewed 12/29/2012).

Plaintiffs’ breach of contract, violation of good faith and fair dealing and breach of bailment claims are centered largely on this language.

While some have returned to the service after Systrom’s posts, many appear to be shifting their focus to other services, at least while awaiting further developments.

To receive alerts in the Funes v. Instagram case on Westlaw Classic, access California Federal District Court Dockets-Northern District (DOCK-CA-NDCT), enter 3:12cv06482 in the “docket number” box to view the docket, then select “track this docket.”

ADDITIONAL RESEARCH REFERENCES

Nilay Patel responds to the Instagram uproar on The Verge,  No, Instagram can’t sell your photos: what the new terms of service really mean.  Nilay Patel also coined the term “Taco Suit” – for specious class action claims, named after the suit where Taco Bell was sued over whether or not its meat content might properly be labeled “beef.”  See This Week in Law, Episode 109 around the 57  minute mark.

For further research on issues of copyright, publicity and privacy rights in social media, try the following search in Secondary Sources on WestlawNext (TP-ALL on Westlaw Classic):

 ti(copyright! (privacy publicity /3 right) & (social /3 media network!) instagram facebook twitter)

 Also see on Westlaw Classic or WestlawNext, Lindey3d 1:36.50, “Material on Twitter Does Not Belong to Everyone.”

 And also see the following summaries of earlier social media litigation:

 29 No. 10 WJCOMPI 5

 29 No. 1 WJCOMPI 10

 14 No. 2 WJTEL 2