When someone takes a photograph, the image is immediately protected by copyright law in Australia. The photographer then has the exclusive right to use and sell the image and can enforce their copyright against anyone who infringes upon their rights. Users of the popular social media platform, Instagram, are in a slightly different position than conventional photographers. This article explains who owns the copyright to photos uploaded to Instagram as well as how users can enforce their rights.
Fair Dealing and Instagram Images
It’s important for Instagram users to know that if a third party sources and uses an image from their feed, the fair dealing principle may protect their use. The principle sets out a number of exceptions against using copyrighted material without securing the owner’s permission, namely:
- research or study,
- criticism or review,
- parody or satire,
- reporting news, or
- professional legal advice.
In 2015, New York artist Richard Prince caused controversy by selling canvasses featuring images that he had sourced on Instagram. A few of the users attempted to prevent Prince from using their work, but as he had added captions to the images in such a way that altered and/or added to their meaning, his work was deemed to be protected by fair use (the US equivalent of fair dealing).
In all other situations where an individual or business sources images from Instagram – and neither Instagram nor the user who posted the image has given permission – then copyright infringement will have taken place. Social media users will be well within their rights to send a cease and desist letter and to ask for appropriate compensation. If necessary, they will be able to pursue justice through the courts.
For example, Tourism Tasmania has recently come under fire after using images posted on Instagram as part of a display in Tasmania’s airport. Photographers had taken the images and shared them on the social media platform so that they appeared as part of Tourism Tasmania’s feed. However, they had not given permission for their work to be reproduced in another medium, off Instagram and in a commercial context. As a result, the photographers are likely to have legal recourse.
This scenario acts as a cautionary tale for government bodies, businesses and corporations looking to source images from social media and a model for social media users in terms of how best to enforce their rights.
When someone uploads a photograph to Instagram, they retain the copyright to the image. Instagram, however, does gain a non-exclusive, fully paid and royalty-free transferable, sub-licence to use the content uploaded to its platform, but are unlikely to license a posters’ image for profit as doing so would put users offside. This means that Instagram can use the content as it chooses and can also licence the content to third parties.
Instagram users seeking to enforce their rights also have to be aware of the fair dealing principle. If third parties make use of images posted on Instagram without licensing them from either the original poster or from Instagram itself, then users can possibly access a legal remedy.