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Instagram: what is it, how can brands use it and why is original content key?

Social media is not a new phenomenon, and for most organisations, has become a common channel for broadcasting content and engaging with customers. However surprisingly, reducing legal risks surrounding the use of social media continues to be a grey area for many organisations, large and small.

To help you avoid these legal pitfalls we’ll be providing regular updates on social media law including the latest news, tips to stay proactive and explain how changes in the law will affect the way your organisation communicates and shares information online.

Amplify your organisation’s image

Instagram is a mobile-based app that enables users to post and share photos and videos to the general public. Users can select an audience on the app, or via other social networking platforms, such as Facebook, Twitter and Flickr. Over the past few years, thousands of brands have joined Instagram, recognising the platform’s potential to facilitate consumer engagement.

A central feature of the app is its range of filters that can be applied to the images. Filters are digital layers that give standard photos the appearance of professional editing. Filters enhance colours, or dull light, and are key to creating food porn, making sunsets appear more intense and individuals more tanned. Captions or anecdotes can be added to explain photographs, hashtags added to provide context and an “@” included before naming people to share the post to their Instagram and Twitter accounts.

Instagram: Who owns your images?

Instagram’s current Terms of Use clearly show that Instagram does not claim ownership of any posted content, including images that have been processed with Instagram’s filters. Instagram does, however, have a licence to use the content posted, subject to its Privacy Policy. According to this Policy, it may share user content with businesses that are part of the same corporate group, namely Facebook. As a result, users of both platforms can expect more targeted advertisements.

According to Instagram’s Community Guidelines, users should “remember to post authentic content, and [not] post anything [they’ve] copied or collected from the Internet that [they] don’t have the right to post.” The platform has a page which explains copyright law and also has a form which can be used to report copyright infringements.

Who can use images posted on Instagram?

Just because an image is posted publicly on Instagram, does not mean that anyone can republish that image, especially for commercial purposes. In Australia, the first owner of copyright in a photo is generally the photographer unless they’re an employee and creating images is part of their job. If a photo is applied to an article without the copyright owner’s authority, the rights holder is entitled to seek damages or profits that the other person gained from use of the image.

Australian active wear company, Lorna Jane, learnt this lesson the hard way. A Brisbane teenager, Lydia Jahnke posted a photo of herself standing on top of a Queensland mountain wearing clothing by Lorna Jane. This image was reposted on Lorna Jane’s Instagram account. A few months later Lorna Jane commenced selling a range of t-shirts which featured the alleged image of Jahnke alongside the words: “The woman on top of the mountain did not fall there.” Jahnke, the copyright owner, considered suing Lorna Jane for breach of copyright, however the matter appears to have settled out of court.

Content includes music

Users must warrant that they own content posted on Instagram, or otherwise have the right to grant Instagram a non-exclusive, sub-licenceable license to the content posted. Users also warrant that their use of content does not infringe a third party’s rights, including intellectual property rights. Content is defined to include photos, text, musical works, applications and links.

With a large percentage of Instagram’s most shared videos being brand-led, advertisers should be aware of the need to ensure that account holders have the rights to all content being posted. So, before posting a video of catwalk models wearing your resort wear collection to the tune of Beyonce’s latest hit, remember that you have warranted that you have the right to both the video and the music posted.

Perhaps due to clip length, Instagram doesn’t appear to police the use of music on its platform. However, considering the lengths YouTube goes to detect infringing music clips, it may only be a short time until the music industry demands that Instagram implement procedures to screen for potential copyright violations.

How to use a posted image

If you want to use an image posted on Instagram to promote your business you should write to the photographer and obtain their written consent. Some may argue that the nature of posting a public image on Instagram indicates that a photographer has consented to the image being shared – especially where the post includes the business name in a hashtag or an @mention. Nevertheless, legally, only the photographer has the right to reproduce the image and if anyone else does, especially for commercial purposes, the photographer has a right to take legal action. So before Lorna Jane next downloads and re-posts (or prints on a t-shirt) an image posted on Instagram with #lornajane, we’re sure they’ll obtain legal authorisation first.

If you have any further questions or require expert advice, please don't hesitate to contact us


Author - Sheree Hollender, Lawyer

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