

Your Instagram photos aren’t really yours: Someone else can sell them for $90k - SimplyUseless
http://www.washingtonpost.com/blogs/style-blog/wp/2015/05/25/a-reminder-that-your-instagram-photos-arent-really-yours-someone-else-can-sell-them-for-90000/

======
danso
Well...yes...this headline manages to be both true but a little off-point. By
posting your photos on Instagram, you have definitely given a third-party
(Instagram) the right to make copies and distribute your photos...yet, the
photo still belongs to you, Instagram is quick to point out [1].

But the reselling of photos as described here is not particular to Instagram.
It involves an artist who reappropriates them for artistic purposes (similar
to parody)...he could've done this with any photo or off of any service...so
this concept isn't even particular to the Internet and the digital age.

However, such examples as the OP are always good for discussion about "what is
art?"...it's not so much the actual work (measured in sweat and hours) put
into it, but the skill in repurposing it, and in the reputation of the
artist...you have to build up quite the career of actually interesting work
before you can get to the point where a rich tycoon will pay you $250K to
splatter mud patterns on one of his walls. It'd be interesting to see a
lawsuit come out of this...I'm guessing the artist could make a good case that
the original photographers would never be able to raise $90K for their
images...people only pay for it because it is work that _he_
noticed/curated/altered.

[1] [http://blog.instagram.com/post/38252135408/thank-you-and-
wer...](http://blog.instagram.com/post/38252135408/thank-you-and-were-
listening)

~~~
0359B02149AB
To me, it's almost the same (but not quite exactly) as someone posting code on
stack overflow, and developers using and relying on that code for their job.

The idea of what part of information is owned and what is shared is a concept
that fascinates and bewilders me consistently. Art has all these emotional
attachments to it, this personal affect, and not many stop to think that for
some people, code - even mathematics, is exactly the same.

Why is there a difference between someone who posts a solution on the
internet, versus someone who teaches a course and publishes a book, versus
someone who traces a drawing using a projector for art? Public and cultural
education, myth, and superstition, mostly. But in quantity and quality - these
determine the success or failure of any venture business; even the start of a
lifelong friendship.

How do people come to the thoughts they conclude with? How do people get
ideas? I guarantee you, if you lock yourself up in a little room and wall
yourself off from society, you will either arrive at some derivative of
absolute truth or you will go insane, possibly both.

If I post this comment, and then other people have ideas that are profitable
as a result of my comment, does it matter how similar their idea to my comment
appears? Do I own those ideas that result from my comment? I would say no,
because that's absurd, but yet, we live in a world that has opinions that
cover the entire spectrum of this dialogue, and then some.

~~~
anon4
Nah, there's a pretty big difference (mentally) between SO and Instagram.

You put your code on SO with the intention of giving it to someone else,
potentially many others. That's the entire point in SO and it's pretty clear
from the start that that's what you're doing there.

You put your photos on Instagram so you can _show_ them to your friends.
Instagram is a storage space for _your_ photos. When someone looks at your
photo, the intention is that you're _showing_ them the photo, rather than
_giving_ them the photo. (Un)Fortunately, when computers are concerned,
showing and giving are the same thing.

The fact that people think of showing and giving as different, but their smart
devices treat them the same, results in a lot of friction. The entire DRM
industry and respective legislation is concerned with aligning computer
behaviour with (some) human expectations.

So yes, I agree that Instagram works the same as Stack Overflow, but that's
not what people's instinctive expectation is.

~~~
0359B02149AB
While this may be instinctive to you, it is not necessarily instinctive to an
artist, or someone with no socio-normal intuition.

------
Someone1234
Copyright law is strange and inconsistent. Contrast this story with this one
("red bus case"[0]):

[http://aandalawblog.blogspot.com/2012/01/red-bus-suggests-
co...](http://aandalawblog.blogspot.com/2012/01/red-bus-suggests-copyright-
law-is-not.html)

So at one end of the spectrum literally taking someone's photo and selling
them without permission is NOT copyright infringement, and at the other end
taking your own photo then altering it a certain way IS copyright
infringement. Someone will have to explain that one to me...

[0]
[https://en.wikipedia.org/wiki/Temple_Island_Collections_Ltd_...](https://en.wikipedia.org/wiki/Temple_Island_Collections_Ltd_v_New_English_Teas_Ltd)

~~~
grabeh
Different legal systems have different approaches to the boundary between
infringement and permissible usage of copyright works.

UK law - copyright infringement is generally based on the concept of
substantial reproduction of the original. On the basis of the similarity
between the two, there was substantial reproduction. The main issue in the Red
Bus case was over proof of copying of the specific work (on the basis that the
work in question had been created by numerous photographers over the years (so
how can you prove the specific work of the claimant was copied?)).

US law - more flexible in the sense of avoiding infringement where the use of
the work in a new light is sufficiently transformative. The linked article
from the OP shows a good example in the combination of four separate shots to
create a new work.

The question would be whether the Instagram reproductions are sufficiently
transformative. Perhaps the reproduction of one photo on its own is not
sufficiently transformative.

Another point of interest is that the person depicted in the photo may not be
the owner of the copyright with a suitable cause of action (unless you're
talking about selfies of course). I'm sure it would make for an interesting
case!

------
pachydermic
It doesn't really bother me that much that someone else could sell your
Instagram photos.

What bothers me is that someone else would buy them, when they're available
for free on the internet.

~~~
wmeredith
I had the same thought. This story is about a transaction between charlatans
and fools. It's a business that has a long and storied history.

Anyone could hunt down an Instagram post that spoke to them and have a very
high quality large print reproduction of it for a couple orders of magnitude
less than $90k. Stuff like this is at the root of my whole beef with modern
art. It's much more about being clever than talent or dedication or anything
else. I could spend a lifetime trying to imitate Rembrandt and never get
there. I could knock this Richard Prince stunt out before lunch if I started
now (it's currently 10:13 AM CST here in Kansas City).

~~~
vinceguidry
I don't think it's quite accurate to call the participants charlatans / fools.
The pieces are presented as clearly ripped off of Instagram, the last bit of
the comment thread preserved along with one of the artist's. The people buying
the prints know exactly what they are, it's difficult to maintain the position
that they're getting ripped off.

Art's a weird world. White canvases have sold for many millions:

[http://www.bloombergview.com/articles/2014-11-14/why-
pay-15-...](http://www.bloombergview.com/articles/2014-11-14/why-
pay-15-million-for-a-white-canvas)

What you're actually buying when you purchase a piece of art is bound to be
subjective, as the enjoyment of visual art is much more individual than, say,
a video game. There are games that blur the lines of what makes up a game, and
people still buy them, play them, and enjoy them.

Also, there's plenty of ways to enjoy a game without ever playing it. When I
was a kid, I would buy strategy guides for games I never played or owned. I'll
watch people playing games that I would never play myself. If someone like
John Romero or Sid Meier made something like a Pac-Man clone, I might buy it.

So it's easy for me to see why someone would buy these Instagram shots.
There's something about the curation and attention being given to them by the
artist that makes it a more interesting experience to look at than if you just
took a screenshot and saved it in a folder or printed it out. The artist isn't
just producing visuals, he's also applying a more cultivated taste to 'what'
he's producing. He's only got so much time to make things, what he chooses to
make tells as much of a story as the skills he used to make it.

~~~
defen
There's a tax shell-game aspect to modern art, as well. If you sell a piece of
art and re-invest the proceeds into a substantially similar work of art
(painting for a painting, sculpture for a sculpture, etc) you can avoid paying
capital gains taxes.

Source: [http://www.nytimes.com/2015/04/27/arts/design/tax-break-
used...](http://www.nytimes.com/2015/04/27/arts/design/tax-break-used-by-
investors-in-flipping-art-faces-scrutiny.html)

------
mullingitover
I find it fascinating that trivial modifications of photos qualify as
'transformative' and thus evade copyright. So it's okay for me to download the
new Taylor Swift single, add some extra reverb, and start selling copies of
it? Cool.

~~~
wmil
Many things in civil law come down to who can afford to spend more on lawyers.

Richard Prince probably has a brother or a fan who's a copyright lawyer
willing to work pro-bono.

~~~
marincounty
I think it does come down to money too--like everything? I think if Richard
Prince downloaded an image of Mickey Mouse, and did his "artistic" magic to
the image, and sold prints in a gallery; his Lawyer would be very busy?

I, personally, don't give websites very many pictures. The few pictures I post
are images I am giving away. Companies, Artists, and webscrapers are free to
do whatever they want with the pictures I give up.

I don't give companies like Instagram any images--period. Facebook gets a
picture of the back of my head, and I still use a pseudonym.

Even in high school, and college I never sat for a school picture. I don't
like people taking my picture without my permission. I don't like companies
whom take, and keep my picture--even for security, and identify purposes. I
don't like public cams. I don't like marketing trend of taking employees
picture for marketing purposes(Whole Foods, etc), or even employee of the
month pictures.

What I am trying to say is I wish people were more concerned about their
Images? I'll admit my my concern over the protection of my image, and the
images I take borders on an obsession. I sometimes wonder if I'm missing out
on opportunities in life by being so private?

I know companies will start running campaigns, and marketing ploys if Not
posting becomes a trend. I can see it now, "Don't miss out on life--post more
images!" "Don't miss out on networking opportunities--post more images!"
"Don't miss out on love--post more images!"

People here know once image is posted it can be copied, manipulated, used
without your consent, and sent around the world. The people I am close to
don't quite realize once they upload in image it's essentially not their's
anymore in any practical sense.

------
wiredfool
The buyers aren't spending 90k for a print of an Instagram, they're spending
90k for Richard Prince's signature on the bottom. Richard Prince could
appropriate anything at this point, make a very limited edition, sign it, and
mint money.

You couldn't, I couldn't, but he can.

~~~
brador
Under your theory, assuming I was famous, could I make a copy of a movie, sign
the DVD copy and sell it for $100 free and clear?

I don't think I'd get away with that, so why should he?

~~~
krisgenre
What if I bought the DVD, got it signed by you and sold it for $100? Replace
DVD with guitars, T-Shirts etc, definitely seen that happening.

~~~
brador
With the items there's no copyright. With the DVD there is. The studio owns
the copyright to the "image" on the DVD that was copied.

I guess the big question is does what he has done to the images count as
derivative works or not? I say not, since he's used the image unmodified.

I hope at $90k a sale it catches the attention of a pro bono for a nice test
case. Would be interesting to see what the courts say.

~~~
asadlionpk
I think he will be in trouble if this gets tested. Just my thoughts. I don't
see how he can defend that.

------
normloman
Add a comment to someone else's Instagram photo: not copyright infringement.
Make 90K.

Sample one measure of a well known song in a hip hop tune: totally copyright
infringement. Get sued for 90k.

------
nitrogen
This seems like another example of a blatantly distorted copyright law
protecting one class of creator while completely shafting the commoners.

------
rplst8
This just continues to prove that copyright law in the US is tailored to serve
one group of people - those who already have a stake in the game.

------
glenda
The headline is a bit like saying "Painters sells dried paint for 90k" or
"Programmer sells series of characters for 90k" Technically it's accurate, but
it misses the point entirely.

Richard Prince, whether you like him or not, is an artist and his medium is
typically found/appropriated objects. We, as a society, have rewarded him in
the past because there is something interesting in what he does. Oftentimes
artists are misunderstood within their lifetimes and the scope of their
interests become more apparent with time. So for now, these are super gimmicky
and somewhat frustrating, but as the world changes in unexpected ways they
will only take on more meaning .

------
brokentone
Now what if @doedeere sold her own 6 foot tall prints of the same image that
fetched $90K? Would Richard Prince then sue her?

~~~
nedwin
I highly doubt it.

------
Torgo
Since he's not getting model releases he might still be breaking privacy law.

------
ChrisArchitect
baffling and understandably shocks ppl....but all that aside, wondering what
kind of quality could the prints be really ? Res of instagram photos isn't
that high right? even thru the API?

------
gcb0
so if i publish a copyrighted material in my Instagram, an i or the publisher
responsible? ... since they are the ones with the prospect of profit...

~~~
nedwin
This would fall under the DMCA. So long as the publisher took down the
material when notified it was an infringement, following their DMCA
procedures.

~~~
krallja
More info: the specific DMCA provision that allows for this is called "Safe
Harbor."

------
Dirlewanger
So a couple different things here:

On one hand, it's funny that user "doedeere" thinks she had to give permission
to the artist in order to use her picture in art. Gives off an air of
entitlement if you ask me. On the other, I think it's a fair example of how
little the average user is aware (read: doesn't give any attention to at all)
of a free service's TOS and what is/isn't allowed, in addition the actual
nature of posting stuff on the Internet. Need to educate yourselves, people
(obviously not anyone browsing HN, but you know what I mean).

The fact that these pieces are selling for that much? Well, I'd say the
suckers are the ones buying them. Maybe in 60 or so years they'll be
considered something? Maybe not? Art's in the eye of the beholder, as it
should be. If people want to wast...I mean spend that much on an enlarged
screenshot, let them.

~~~
patorjk
This doesn't have anything to do with Instagram's TOS though. The artist is
banking on his screenshots being considered "transformative". However, what
this means is kind of grey. Does adding a comment under a picture add new
value [1] to that picture? There have been cases brought where the art in
question had much more transformation applied to it (examples: Harry Potter
encyclopedia, Obama Hope Image).

[1] [http://fairuse.stanford.edu/overview/fair-use/four-
factors/#...](http://fairuse.stanford.edu/overview/fair-use/four-
factors/#the_transformative_factor_the_purpose_and_character_of_your_use)

