December 21, 2017Sociable Blog: Navigating The Pitfalls Of Copyright Infringement When Posting On Instagram

Navigating The Pitfalls Of Copyright Infringement When Posting On Instagram Posted by: Joe G Naylor on December 21, 2017

As Instagram and other social media platforms have fully ingrained themselves into our every day lives, sharing photos with friends, family, colleagues and the world at large has become second nature. Given that, I’m pretty confident in saying that the first thought that crosses your mind when sharing that super cool shot of Ed Sheeran or of that tantalizing portrait of the perfect burger, with protruding bacon and oozing gruyere, is not whether or not you are about to commit copyright infringement.

Those who review Instagram’s Terms of Use before posting and reposting photos on the leading photography social media network are few and far between, but if you want to avoid committing copyright infringement it is important to be familiar with the rules. Over the years, I have had the pleasure of working closely with one of the best copyright attorneys in the country, One LLP’s John Tehranian, in an effort to help my photographers navigate the quagmire that is the crossroads of social media and copyright law.

Below, I try to shine a little bit of light on some of the issues swirling around copyright infringement and Instagram.

Do I Give Up My Copyrights When I Post My Photos On Instagram? Your copyrights are established the instant you take a photo. The only exceptions are if you shoot photos for your employer or sign a valid special commission agreement that vests the copyrights to your photos in your client.

As the copyright owner, you have exclusive rights in the photograph, including the right to reproduce copies, prepare derivative works, distribute copies, and publicly display them. Violation of any one of these rights by another party can be an infringement under federal law, even if done innocently and without any commercial purpose.

However, by posting your photos on Instagram and other social media platforms, you are agreeing to their terms of use. Under Instagram’s Terms of Use, when you post an image on the service, you grant Instagram “a non-exclusive, fully paid and royalty-free, transferable, sublicensable, worldwide license to use that Content” on the service. So while posting your photo doesn’t mean you’ve relinquished your ownership of the photo’s copyright, you have provided Instagram with a broad range of rights to do pretty much whatever they want to do with those photos.

And the last time I checked, Instagram is not a not-for-profit organization. So while Instagram can be a powerful tool to promote your work, it is important to be aware of the potential rights you are giving to Instagram in the process.

Can I Repost Images I Find On The Explore Page? This is trickier than you might think. While the terms of use that one agrees to when posting an image to Instagram should protect you when using Instagram’s app to repost or share that photo, the devil is in the details. And one critical detail that can be very challenging to ferret out is whether or not the original source actually had the rights to post the photo to Instagram. Because if they didn’t, then the license granted to Instagram is what is referred to as a sham license, as the original source didn’t have the rights to enter into that agreement with Instagram to begin with.

Therefore, you may be liable for infringement by reposting that photo.

Is It Infringement If I Use The Repost App Or Tag The Original Page? The simple and likely frustrating answer is that it might be. Arguably, users who repost images via the Repost App can piggyback on the license granted by the original source to Instagram per Instagram’s Terms of Use. However, such reliance is not without significant risks. As previously stated, the person who posted the picture might not own the copyright for the image, so if you use the app and it isn’t their photo, you could be liable for copyright infringement yourself.

Furthermore, even if Instagram’s license is valid, it is unclear that it has been properly transferred/sublicensed to users of the Repost App. As such, the Repost App raises questions related to the unauthorized reproduction and public display of copyright images that may subject its users to infringement liability.

All the while, neither providing a link back to the “original” source of an image nor providing a clear statement of where an image was sourced is ever, by itself, a defense to infringement. Even if you tag the account, you have still not properly licensed the image for distribution. Copyright holders always appreciate proper crediting but appreciate proper licensing practices even more.

What If I Post A Picture Of A Celebrity I Find Online?

One of the exclusive rights of the copyright owner is the right to reproduce copies, therefore you should obtain a license from the photographer before posting any photo. And it must be noted that posting someone else’s copyrighted photograph without permission is not just copyright infringement but also a violation of Instagram’s Terms of Use.

These rules don’t just pertain to you, they also extend to the celebrities themselves. It is important to know that just because a celebrity posted a photo of themselves to their Instagram doesn’t mean that you can repost it to your page as well. When celebrities are photographed, the photographer owns the rights to the image, not the celebrity.

In fact, there are more and more stories making the news these days about celebrities being sued for copyright infringement for posting pictures of themselves to social media without first obtaining permission from the photographer. Just ask Khloe Kardashian.