On October 20th, the New York Post reported that Instagram deleted accounts of individuals who posted videos and photographs of Janet Jackson’s live performances to the social networking application. Apparently, these users received emails explaining that “a third party reported that the content violates their copyright.” The coverage highlights how these fans, attending concerts of Jackson’s Unbreakable tour, lost all of the photos they had taken and posted to the app, “without warning.” These fans presumably had no idea that in posting photographs and short clips of a concert they attended would be banned from the social networking app and lose all of their previously created content they had posted to the site – “Every. Single. Photo. Gone.”

Intagram’s API (“application programming interfaces”) Terms of Use states that users shall not “[u]se the Instagram APIs in any manner or for any purpose that violates any law or regulation, or any rights of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality.” The API outlines the ways in which Instagram may “terminate the license at any time for any reason” and:

Your rights to use the Instagram APIs terminate automatically if (i) you violate any of these terms, (ii) Instagram publicly posts a written notice of termination on Instagram.com, (iii) Instagram sends a written notice of termination to you, or (iv) Instagram disables your access to the Instagram APIs.

As noted by TMZ and PetaPixel, the postings presumably violated Instagram’s terms of use because they contained copyrighted music, but this also occurred for users who posted still photos, which generally would not constitute copyright infringement unless legally binding agreements stated otherwise. I went to the Ticketmaster website to check if the tickets for Jackson’s Unbreakable tour contain provisions prohibiting users from posting still photographs or granting copyright of the images to Jackson; I was unable to find such terms. If they exist, they do not seem to be communicated prior to completion of the ticket purchase. So it is unclear from a legal standpoint why users who posted still photographs experienced sanctions from Instagram.

Much of the coverage and public backlash is focusing on how “Jackson’s team is known to be legally strict,” mentioning previous incidents of other social media accounts being deleted after releasing media containing Jackson’s music and Jackson’s strict contract for concert photographers, which states they can only take photographs during the first 30 seconds of the first song during her tour.

Jackson responded to fans on Instagram, posting the following:

“Hey you guys, I have been listening… I love and appreciate my fans. I want you to know that I enjoy watching the short video clips of how you are Burning It Up at the Unbreakable shows. Please keep posting them. My team is passionate about protecting the intellectual property we are creating for the tour and possible future projects. It was never their intention, acting on my behalf, to have social media accounts removed. Permitting the use of long clips does present a contractual problem for these projects. I hope you understand. I trust the fans will use their short recordings for their own memories and to share on their social media networks of choice. I have asked my team to change their approach and allow you to engage socially with these videos. I know I wouldn’t be here without the love I stand on.”

So Jackson is encouraging the posting of these clips to social media, when her team is clearly encouraging Instagram to take down certain videos. She does mention how “use of long clips does present a contractual problem” but doesn’t elaborate. How can Jackson’s strict policing of her content on social media be advantageous to the singer? Activity on social media would presumably increase the noteworthiness of her tour and her songs. After all, people don’t use Instagram to listen to music, so users posting clips from the performance would more likely stimulate rather than detract from purchases of her songs and concerts. The negative backlash from fans isn’t helping her image, although the incident probably did increase mentions of her tour. Overall, Jackson’s approach seems to be a counterintuitive strategy for an entertainer to take. Perez Hilton expressed this sentiment, saying, “We get that Janet has a right to her own music, but fighting against people who just want to show off their experiences at your shows seems awfully archaic to us.”

And how about the actions of Instagram? According to the Post, Instagram denied that all of the deletions were intentional, saying, “We have identified a bug that resulted in the removal of accounts that shouldn’t have been removed… [w]e have fixed the bug and are in the process of restoring the impacted accounts.” Apparently, only “repeat infringers’” accounts were to be deleted.

Even if a “bug” is partially responsible for the extreme consequences certain posters faced, Instagram’s statement confirms that they remove “copyrighted” content and intentionally delete some users from the site, permanently.

TMZ posted a screenshot of Instagram’s message to blocked users: “Your account has been deleted from not following our terms. You won’t be able to log into this account and no one else will be able to see it. We’re unable to restore accounts that are deleted for these types of reasons.”

Note Instagram’s choice of words – that the company is unable to restore these deleted accounts. As they are currently in the process of reinstating certain users who were “incorrectly affected,” Instagram clearly does have the ability, from a technical perspective, to restore accounts. So why does Instagram banish users and take away their ability to access even a user’s own, legally obtained, and unique photographs previously posted? Although may have a legal obligation to remove the copyrighted content once alerted, must they delete entire accounts at all? The action, in theory a reasonable means of limiting their liability, seems unnecessary. Entertainers such as Jackson rely heavily on Instagram (on which Jackson posts content to her 263k followers), and it’s parent company Facebook (where 2,751,387 users “like” Jackson’s official page), to promote their brand and connect to their fans. Even if legally warranted, it would be unwise for Jackson to take legal action against Instagram. So what really makes Instagram unable to restore such accounts or fail to delete them in the first place?

 

Perri Blitz is a J.D. candidate, 2017, at NYU School of Law.