“It ain’t hard to tell” when you’re infringing copyright on Instagram
Ok maybe it was for rapper Nas, back in 2020 when he uploaded a photo of Tupac Shakur and himself taken by photographer Al Periera in 1993. Similar thing with Emily Ratajkowski for uploading a picture of herself outside a Manhattan flower shop on Instagram. All because they didn’t ask permission from the photographer. This is a classic example of just how confusing intellectual property law and Instagram can be.
Instagram evolvement
I mean what happed to Instagram. You know back in 2012 when we would upload a photo of our coffee using the Valencia or Nashville filter with a thick white border to go around, giving your photo that vignette look. Adding a caption #coffeoftheday #latteart #coffeedrinkerforeverandever… posted!
Going back to check and receiving only 10 humble likes but that was enough because ultimately that’s what Instagram was used for.
Now Instagram has evolved, where more than 1 billion users now use Instagram. It has become a platform where we can all be described as some sort of content creator. It is an incredible tool to reach the masses (beyond those 10 humble likes).
I for one see thousands of content daily from, how to maintain curls, to how to style your latest kicks, to buying some amazing artwork through Instagram… to hearing new beats from my fav artists to being exposed to thousands of marketing promos for businesses .
But with all these amazing changes, it is key for us as Instagram users to keep up to date with the latest intellectual property rights, trends/developments including the risks of accidentally infringing copyright.
So what exactly is Copyright?
Copyright falls under intellectual property. It aims to protect original expression of ideas by giving the owner the exclusive right to copy and distribute their work (“OG Creator”). Copyright gives you exclusive control over the use of your artistic works, photographs, musical works, dramatic works, literary works, sound recordings & published editions.
In Australia, copyright is also free and automatically arises once you have created something, so there is no need to register it. This includes the moment you post on Instagram (assuming you own it). If you are the OG Creator and automatically have copyright over your post!
What! Does that mean Instagram owns my content?
Let’s assume you didn’t read the terms and conditions when you were signing up to Instagram. Well in brief, when you sign up to Instagram, you are entering into an agreement between Instagram and yourself. As the user where you agree to abide by the terms and conditions in exchange for use of their services (“T & C”).
Now, before you start thinking that all your content whether music or art or photos is now owned by Instagram… let’s go back to their T & C which says, “we do not claim ownership of your content, but you grant us a license to use it.”
So, when you upload content to the Gram, no you’re not transferring your copyright to Instagram. You are still the OG creator, but you are granting a license to Instagram to host and use your content in certain ways.
What about other users?
Whilst Instagram has a licence, copyright can be infringed by other users. When another user clicks re-post or uploads content that isn’t theirs or starts using music in the background of a video without asking permission from the Creator. This is an infringement.
Even Instagram in their terms and conditions says, “you can only post content to Instagram that doesn’t violate someone else’s intellectual property”. This means that if a user re-posting your content without your permission, they could be infringing your copyright.
But what if they tagged you and gave credit?
Think again! Even if someone has tagged you or mentioned the OG Creator, this can still be considered as infringing copyright. It comes down to whether they asked for permission.
So your copyright has been infringed?
Imagine you poured your time and used your creative juices to create a piece of artwork and you posted it on your Instagram, but later down the track you see that someone else is using your work, without your permission.
Besides getting completely upset and angry, your next step would be to make sure that yes, 100% it is clearly identical, and its clear that you now have a copy cat.
If you are certain the first thing to do, is to get a lawyer to issue a Cease and Desist Letter, a fancy way of effectively calling them out for infringement.
It is important to outline the infringement itself, the effects on you/your business and issue a warning for them to stop or at least come to a resolution.
If that doesn’t work legal proceedings might be the way to go, however each situation is different and it is important get the right advice from a lawyer first!
All in all Instagram has become a huge part of our lives and has become a useful tool in many aspects. With that come a rise in various legal issues including copyright. It is important to be aware of copyright ownership when using Instagram or any other social medial platforms, to know your intellectual property rights & what to do if you copyright has been infringed.
At Green & Associates, we are experts in applying for no convictions and have an excellent success rate in achieving this for our clients. Regardless of the charge, we are ready to be in your corner and assist you during this uncertain time. If you or someone you know needs more information about Copyright, contact our office today.
