Reading time: 5 minutes

Toto, I’ve a feeling we’re not in Kansas anymore.

Mad Men popularised ideas of “suits” sitting in small rooms, smoking cigars and sipping old fashions. But not even Don Draper could have predicted Instagram as an ad agency’s replacement. Advertising is no longer an exclusive boys club, but an open arena for creative innovation and imagination. Instagram catapulted creators into the online spotlight.

The photo-sharing service allows primary school teachers (Katherine Sabbath and her rainbow cakes) and budding designers (Danling Xiao of Mundane Matters and his fruit and veg creations) to reach markets, and hardly spend a cent. Instagram equips users to build their brand and following. However, it also attracts legal issues including copyright infringement. So what are the rules and best practice when advertising on Instragram by posting photos? Who has had their material stolen? Is it Instagram’s role to stop copyright infringement? We unpack these questions below.

Rules and Regs

What are your rights if you’re an avid Instagrammer and you regularly invest your time taking photos and posting on your account? 

Under the Copyright Act 1968 (the Act), your photos automatically attract copyright, giving you the right to reproduce, publish and communicate your images to the public. If someone uses your Instagram photos without your permission, for example by publishing, sharing or reproducing your work, they have infringed your copyright (section 36(1)). 

What if Someone Screen-Grabs my Work?

Someone infringes your copyright if they screen-grab your photo, and then post it on their Instagram account without your permission. Whether or not they acknowledge your authorship is irrelevant. If a person uses your photo and doesn’t ask for your permission, they have infringed your copyright. 

Wrap Up: Who Has Had Their Images Used in the Past?

Light Googling reveals many photographers have had their Instagram images used without their permission. We set out cases showing that big brands have unscrupulously poached images for their designs, for Instagram, or simply for personal gain. 

Mango (MNG) 

Tuana Aziz’s halcyon photograph of a friend, head down with rivers of curls in gentle sunlight clearly resonated with Mango clothing’s design team. Aziz discovered T-Shirts bearing his image in Mango stores and available for sale online. The result? Mango apologised unreservedly for using Aziz’s image without permission and provided compensation.

Spanish Vogue

Sion Fullana, a Spanish photographer based in New York, had two of his images posted on Spanish Vogue’s Instagram account without permission. The result? Spanish Vogue apologised and paid Fullana in full for the use of his copyright.

Richard Prince

Prince took screenshots of individuals’ publicly available Instagram accounts and used them in his “New Portraits” exhibition in the Frieze Art Fair, New York. The portraits sold for $US90,000. The result? Some individuals complained, some felt honoured and others were apathetic.

Lorna Jane

Popular activewear brand Lorna Jane poached a fan’s Instagram image and used it on one of their T-Shirts. The image shows the Instagram fan (Lydia Jahnke) standing triumphantly on top of a mountain. The result? Jahnke complained to Lorna Jane and the matter is assumed to have settled. 

Instagram users are clearly vulnerable to having their images taken and used without permission. So, how can you ensure that you don’t infringe someone’s copyright? 

For Businesses – A Best Practice Guide

Businesses using Instagram to advertise need to be wary of the images used to market a campaign, a look, or a product.

If your business uses an image without permission, it is irrelevant that the use was innocent, that you didn’t mean to infringe copyright or that you didn’t know the copyright was owned by someone else. Australia’s copyright law operates such that if you use an image without permission, you have infringed the photographer’s copyright.  

Best practice is always to follow common sense. If you want to use another’s Instagram photo or you’re unsure of the source, either ask permission or don’t use the photo.

Is it Instagram’s Role to Stop Infringement?

Instagram allows users to notify the company where copyright infringement occurs. Instagram usually removes the photo but then takes no further action, frustrating many users. But should Instagram do more?

Firstly, Instagram’s Terms of Service under ‘Rights’, clause 4 states that all users must warrant that they own the content posted. The warranties mean that Instgram isn’t liable if a user takes another user’s image and posts it. Secondly, if a person’s legal rights have been infringed, it is usually that person’s responsibility to seek legal remedy.

Key Takeaways

Instagram is an open source creative commons platform allowing people to display and exploit their creativity. It encourages people to comment, like and share images and is an incredible way for businesses to reach followers and develop their brand. There are, however, risks involved. An increasing number of people have had their Instagram images taken without permission. If you use Instagram to advertise your business and want to use another’s image, ask permission first!

What do you think? Tag us on Twitter @legalvision_au and let us know or ask our intellectual property lawyers.


Redundancies and Restructuring: Understanding Your Employer Obligations

Thursday 7 July | 11:00 - 11:45am

If you plan on making a role redundant, it is crucial that you understand your employer obligations. Our free webinar will explain.
Register Now

How to Sponsor Foreign Workers For Your Tech Business

Wednesday 13 July | 11:00 - 11:45am

Need web3 talent for your tech business? Consider sponsoring workers from overseas. Join our free webinar to learn more.
Register Now

Advertising 101: Social Media, Influencers and the Law

Thursday 21 July | 11:00 - 11:45am

Learn how to promote your business on social media without breaking the law. Register for our free webinar today.
Register Now

Structuring for Certainty in Uncertain Times

Tuesday 26 July | 12:00 - 12:45pm

Learn how to structure to weather storm and ensure you can take advantage of the “green shoots” opportunities arising on the other side of a recession.
Register Now

Playing for the Prize: How to Run Trade Promotions

Thursday 28 July | 11:00 - 11:45am

Running a promotion with a prize? Your business has specific trade promotion obligations. Join our free webinar to learn more.
Register Now

Web3 Essentials: Understanding SAFT Agreements

Tuesday 2 August | 11:00 - 11:45am

Learn how SAFT Agreements can help your Web3 business when raising capital. Register today for our free webinar.
Register Now

Understanding Your Annual Franchise Update Obligations

Wednesday 3 August | 11:00 - 11:45am

Franchisors must meet annual reporting obligations each October. Understand your legal requirements by registering for our free webinar today.
Register Now

Legal Essentials for Product Manufacturers

Thursday 11 August | 11:00 - 11:45am

As a product manufacturer, do you know your legal obligations if there is a product recall? Join our free webinar to learn more.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Chloe Sevil
Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Innovation Award 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Award 2020 Employer of Choice Winner – Australasian Lawyer
  • 2020 Financial Times Award 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year Award 2021 Law Firm of the Year - Australasian Law Awards
  • 2022 Law Firm of the Year Winner 2022 Law Firm of the Year - Australasian Law Awards