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.

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