Two current cases in the United States, a class action lawsuit and recently filed complaint, have brought to the fore serious copyright issues for Instagram’s 300 million users.
The right to use photos posted on social networks is a pervasive, current, but largely uncertain intellectual property issue. This issue may pose problems for those who fail to give it due consideration. By its standard terms, Instagram appropriates a right to a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that users post on or through the Service”. However, other users frequently and incorrectly consider that they have the same right.
Instagram’s US$1 billion value is in large part based on its influence in the world of advertising. The owners of images posted to Instagram are beginning to seek their share of that value.
Intellectual Property and Instagram
In 2011, Tuana Aziz was shocked to find that Mango clothing were selling a t-shirt screen-printed with an image he had earlier posted to Instagram.
In 2012, New York photographer Sion Fullana found two of his photos on the Instagram account of Vogue Spain.
In 2013, Instagram “clarified” its terms of service to ensure that users would have absolute ownership of copyright in their own images. However, that has not stopped businesses, publishers, and other users from helping themselves to the images for reposting on the platform, or using elsewhere.
Unlike Facebook and Twitter, Instagram does not have a native “Share” or “Retweet” option, which would at least provide some credit to the original author and alert them to the reuse of their property. Rather, Instagram users take a screenshot and repost images themselves, or use a third party app to do so. As an indication of how frequently this occurs, a quick search of the hashtag #repost results in 180 million hits. It may appear that once you post a photo on Instagram it belongs to the world, but that is not the case.
A warning against these common practises comes from the case of Daniel Morel who successfully sued and was awarded $1.2m. Morel’s photos of one of the victims of Haiti’s earthquake in 2010 were picked up from twitter and re-used by Agence France-Presse without his consent. The lawsuit took three years, but eventually Morel was compensated with the large sum by a federal jury as a statutory penalty under the US Copyright Act.
Groupon now faces a class action lawsuit that claims the “deals” provider has used over 1,000 Instagram photos in its advertising. Groupon has allegedly taken users’ photos which have been tagged at various restaurants, and used them to advertise those restaurants’ deals. The lawsuit raises questions about the legality of this common behaviour of businesses, which is to repost images tagged by users.
It is arguable that tagging the business on Instagram, or tagging the business’s location, gives that business an implied licence to repost. Indeed, many social media users would welcome reposting or quoting of their content to a wider audience, provided they are credited as the original author. If such an implied licence exists, it is unclear how far it may extend, for example to use on other forms of social media, or otherwise online or in advertising. It is unlikely that any particular test case could provide certainty in all circumstances or across judicial borders.
Graham v Prince
The second current case concerns alleged copyright infringement by notorious artist Richard Prince. Prince has built a name for himself based largely on appropriation, and adaptation, of others’ work.
His latest work New Portraits consists of enlarged photos from others’ Instagram accounts including celebrities such as Kate Moss and Pamela Anderson and photographer Donald Graham who has launched the proceeding. Prince’s contribution to the works is merely the addition of a comment below existing ones on the photo, sometimes with an emoji. In 2013 the US Court of Appeals for the Second Circuit gave Prince a controversial “fair use” victory against another photographer, Patrick Cariou, after Prince used and altered several of Cariou’s photos in Canal Zone.
Prince has answered the present case with the same defence as in 2013, relying on “fair use” provisions of US copyright law.
The case will be an interesting one to follow, as copyright infringement both on Instagram and by users repurposing images from Instagram on other mediums is so prevalent. As most instances do not involve commercial use of a work created for a commercial purpose, they are unlikely to be the subject of costly court proceedings.
What can you do?
As a business
Many “Instagrammers” will be happy for you to repost an image, so long as you credit them as the original author. This attribution is consistent with an author’s moral rights under the Copyright Act, although these must first be “asserted” before being enforceable. Any reposted image should be removed if the owner requests. For anything beyond reposting to an Instagram account though, we recommend that you ask permission to do so. Crocs recently did not, and found themselves publicly criticised. Now, the Crocs Instagram account leaves a comment below the photo to which users can reply with #CrocsOK to grant permission for use of the image.
Without permission, a business puts itself at risk of litigation. If a professional photographer brought a lawsuit for misappropriation of its Instagram image by a business, the Court may find against that business for copyright infringement, and could make an award of substantial damages and costs.
As a copyright owner
Posting, tagging and/or hashtagging images does not necessarily give up a user’s right to copyright, subject to the platform’s terms and conditions. If another account reposts your image without permission, they have arguably infringed your copyright. If you contact them and they refuse to remove it, you can report it to Instagram for removal, though this can be a slow process. If a business uses your image on its website or in advertising without permission, then you are likely to have good grounds for a complaint.
New Zealand’s copyright laws
New Zealand Courts have not yet been asked to grapple with issues of intellectual property rights and social media. It is worth noting though, that as New Zealand has no generic “fair use” defence to copyright infringement, any reuse of another’s image posted on social media or beyond will be more likely to infringe in New Zealand than it would be in the USA.
There is no denying the influence of Instagram on brands and advertising, but it’s important that businesses understand the potential ramifications of its use.