Copyright & Instagram 101: Basics for Content Creators and Content Stealers
What do Drake, Vogue Spain, and fashion retailer Mango have in common? All three have improperly re-used content from other Instagram users. The first two engaged in the new norm of reposting an image without permission and/or credit from the creator.1 In the third case, a Swedish photographer unwittingly stumbled upon his own work on a t-shirt in a Mango store.2 The image, originally posted to the photographer’s Instagram account, was reproduced without permission.
These stories, among others, reveal that Instagram is the digital Wild West. With around 800 million monthly users,3 the sheer amount of content posted makes it nearly impossible for anyone to police proper use of the app. While sharing has never been easier, the same applies to stealing.
This phenomenon raises the question of how best to protect the intellectual property rights of content creators on Instagram. Photos and videos fall within the types of works protected by U.S. copyright law.4 These works may automatically qualify for protection as long as they are an “original work of authorship.”5 The threshold for originality requires that the work is independently created by the author with a minimal degree of creative effort.6 Accordingly, even framing and taking a photo by iPhone or DSLR can result in an automatic copyright.
Subject to limited exceptions, the owner of copyright has the exclusive ability to reproduce, sell, and publicly display the work.7 Ownership usually belongs to the person who takes the photo. However, this may not be the case where the photograph is being taken for another person, such as an employer. In the latter scenario, a photo may be considered a “work made for hire” and copyright ownership may lie with the employer or the person who the work was prepared for.8
For the purpose of Instagram, the most important takeaway is that only a copyright owner can reproduce, sell, and publicly display a work. Not only does re-posting content without permission run contrary to U.S. law, but this is also a violation of the Instagram Community Guidelines.9 As a result, anyone who re-posts another user’s image without permission runs the risk of copyright infringement, and perhaps worse, removal from Instagram.
On the other side, the popularity of Instagram means that individuals and business owners are likely to continue posting original images and videos. However, content creators might consider a number of ways to protect themselves from copyright troubles down the road. First, placement of a watermark or initials on an image helps to identify its source.10 While this will not prevent another person from copying the image, it will prevent quick re-posters from claiming it as their own. Second, if permission is requested to share an image, creators must be clear on what they will grant permission for: re-posting once? re-posting with credit? re-posting through multiple affiliates? In other words, the parameters of consent should be clearly delineated and documented to avoid any misunderstandings. Third, commercial users of Instagram might consider registering their copyright before making images public on Instagram. Although copyright is automatic, copyright registration can result in additional benefits upon infringement. Lastly, creators should become familiar with Instagram’s reporting methods for any suspected violations of copyright.11
Fernando Alfonso III, More allegedly stolen “Vogue” shots discovered by photographer Sion Fullama, The Daily Dot (Apr. 25, 2012), https://www.dailydot.com/news/vogue-instagram-photos-stolen-sion-fullana/ [https://perma.cc/WEV4-NXJG]; Jake Kivanc, What Happened When Drake Poached My Photo for His Instagram, Vice (May 2, 2016), https://www.vice.com/en_us/article/ppvp3z/what-happened-when-drake-pouched-my-photo-for-his-instagram [https://perma.cc/FX5H-GH3P].↩
Kris Holt, Fashion retailer accused of stealing Instagram photo, The Daily Dot (Feb. 4, 2013), https://www.dailydot.com/news/mango-fashion-instagram-photo-theft/ [https://perma.cc/99VL-SRAS].↩
Darrell Etherington, Instagram now has 800 million monthly and 500 million daily active users, TechCrunch (Sept. 25, 2017), https://techcrunch.com/2017/09/25/instagram-now-has-800-million-monthly-and-500-million-daily-active-users/ [https://perma.cc/59D5-82CW].↩
17 U.S.C. § 102 (2017).↩
Id. at § 102(a).↩
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991).↩
17 USC § 106 (2017).↩
Id. at § 201(b).↩
Community Guidelines, Instagram, https://help.instagram.com/477434105621119/?helpref=hc_fnav&bc=368390626577968&bc=285881641526716 [https://perma.cc/ZDG7-HC4C] (last visited Nov. 19, 2017).↩
Copyright, Instagram, https://help.instagram.com/126382350847838?helpref=page_content [https://perma.cc/3PUN-TU9K] (last visited Nov. 19, 2017).↩