Printstagram Gets Smacked by Instagram Over Trademark Dispute, Turns Lemons Into Lemonade

2014 has been a big year for me personally. As many of you know, Steph and I were happy to welcome our first child last month, a baby girl named Hannah. We also bought our first house back in June, which is what sparked today’s blog post.

With more wall space to cover than our two previous (and oh so tiny) apartments combined, Steph and I decided to frame a bunch of pictures and hang them up. We found Printstagram, a popular online service that - yup, you guessed it - allows you to upload your Instagram photos and print them on high quality photo paper. We gave it a shot last week and really fell for it.

Our timing was odd because the day after we placed our order, I got this email from Social Print Studio, the company that runs Printstagram.

The competition idea is a really clever way to deal with what must be a devastating legal blow. Starting last year, Instagram (and parent company, Facebook) began cracking down on apps and services that used any combination of “insta” or “gram” in their names in order to give a wide berth to Instagram’s valuable trademark. This is a switch from the company’s original policy which had encouraged derivative apps to use either word (but never both). But now that it’s a multi-billion dollar company, the MO has changed. Money will do that I guess.

Although to be honest, as tough as this must be for the Printstagram people, Instagram kind of has an argument. A central tenet of The Lanham Act (the law that governs trademark protection and infringement issues) is that similar marks that are "likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association” may be liable for trademark infringement. That is, if the general public could reasonably assume that Printstagram was actually affiliated with Instagram, that could cause confusion in the marketplace and, potentially, drive revenues away from Instagram. That would be enough to rise to a trademark infringement claim.

I’d be interested to hear the argument Printstagram could’ve mounted in its defense. However, considering the similarity between the names and the nature of Printstagram’s service, they probably would have lost... and they knew it, which is why they’re changing their name.

Anyway, kudos to them for turning lemons into lemonade. They got hit hard but decided to roll with it in a fun way, rather than get bogged down in messy litigation. The email lists several strict but hilarious guidelines for the contest, such as:

• Name must get us into legal trouble, but not for at least 2 years.
• Name must be a future failed band name.
• Name must be more beautiful in Spanish.
• Name must reference a Bill Murray role.
• Name must be something your mother once whispered into your ear.
• Name must be appropriate for the back of a boat.
• Name must have a corresponding gif.

The winning choice will end up with a bunch of free printing, so I might give the contest a shot. I still have some wall space available.

"Caveat Emptor" or Why It's [Kind of] Okay For Facebook and Instagram To Steal From You

"If you are not paying for it, you're not the customer; you're the product being sold."

- Meta-Filter user blue_beetle

I had planned on writing about Instagram's massive PR shit-storm this week so I could address the ramifications of its new terms of service; you know, where they basically said to their users "you still own your copyrighted work, but we're going to strip away all the rights surrounding that so we can make money off your work and you can't do anything to stop us." [If you don't know, Instagram proposed that they could sub-license photos you posted in the app to other entities such as advertisers without paying you, the copyright owner]. I ended up not writing about it because the backlash was so big and swift against the social network that they backpedaled, reverting to their old terms of service.  Thus ended the issue in my mind.

Then I had a change of heart because I realized that this was a good time to discuss a topic that I think everyone should be well versed on: caveat emptor, a.k.a. let the buyer beware.  Caveat Emptor has its roots in property law and the idea is pretty simple: you should do the research when you buy something.  If you fail to cross all the "t"s, dot all the "i"s, you don't have any legal recourses when you buy something that turns out to be defective. When you sign a contract, courts presume that both sides know what they're getting themselves into.  That's why you generally can't plead ignorance when a contract screws you over.

So when blue_beetle says "if you are not paying for it, you're not the customer; you're the product being sold" he means that when you sign up for a Facebook or Instagram account, you have to assume that these services want something from you, and you should read their terms of service and find out what you're getting into.  And truth be told, I [mostly] agree with blue_beetle.  Now I certainly don't condone someone profiting off your copyright without giving you a cut.  And I really get up in arms when large corporate copyright holders try to stick it to individual artists who don't have the power or wherewithal to fight back.  That violates everything I stand for.  But people do need to have  certain expectations when they sign a contract with these services - and make no mistake, a Facebook or Instagram account is a legally binding contract.  These services are not charity organizations; they are corporations (or rather, a single large corporation due to Facebook's acquisition of Instagram earlier this year) and the paramount driving force of a corporation is to make lots and lots of $$$.  If that means exploitation of its user base, then so be it.

When Facebook shares your personal information with advertisers, you don't have an expectation of privacy to that information.  After all, you shared it freely and willingly.  And even if you limit which users can see that information with Facebook's privacy settings, your information is never private to Facebook - your contract is with them, not with other Facebook users.  Meanwhile, if Instagram decides they want to license photos you share to advertisers, then can do it simply because you agreed to their terms of service.  Is it ethical?  Not really.  But is it legal?  Unfortunately it is.

I believe that the first step to controlling your artistic destiny is becoming vigilant to the situations you get yourself into. When you post a picture to Facebook or Instagram, you should understand that they will take some level of ownership over that picture.  Despite my many gripes, I will be sticking with Facebook and Instagram for the time being.  I understand that they want something from me and I'm willing to accept that in return for the personal and commercial benefits I derive from using those social networks.

But just because something is legal doesn't mean we have to let them get away with it.  There are other ways to measure success beyond a lawsuit.  For example, exploiting users' copyrighted work as Instagram tried to do this week is pretty bad policy.  We know that because the level of apoplexy that erupted forced Instagram to scurry back into the warm (if financially shallow) embraces of its old policies.   Instagram knows isn't the only photo sharing app out there with neat filters and it learned that if it can't work WITH users instead of against them, well there's always Flickr and Hipstamatic waiting to take your business.  And they'll be much more agreeable to having terms that benefit the user.

Happy Holidays everyone!

[Author's correction: in my post a few weeks ago about the Facebook copyright policy issue, I stated that Facebook can't arbitrarily change its terms of service once you sign them.  While that is generally correct in normal contract situations, that is not how it works with services like these.  Both Facebook and Instagram state in their terms of service that they may materially change their terms at will, and by continuing to have an account with them, you agree to those  new terms.  I think that such terms are probably bad policy as well, but I see nothing legally wrong with them.  If there are any contracts attorneys out there who are willing to educate me otherwise, I'm all ears.  I'd love to hear that such terms violate some law or another.]