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Instagram is a great way to share creative content. With a community of over 1 billion users, your photo or video has the potential to reach people worldwide. As your content could have a global audience, it is crucial to understand how Instagram treats different copyright issues arising from posting your content on the platform. This article will consider key copyright issues arising from posting your content on Instagram and how your content could infringe on the copyright of others.
What is Copyright?
Copyright is a type of intellectual property (IP) right that protects the original expression of ideas, including:
- books;
- drawings;
- photographs;
- music; and
- film.
Copyright is a free and automatic legal right in Australia. This means copyright protects your work automatically as soon as it is created or documented. However, it is essential to understand that only original and creative works are eligible for copyright protection. The author must have created the work rather than it being derived or copied from someone else.
Who Owns Copyright?
Generally, the person who creates the original work will own the copyright. This means you are the legal owner of a photo from the moment you take it. As the legal owner, you have the exclusive right to post the photo on your Instagram account. Further, you may publish or reproduce the image in any way.
However, issues may arise if there are multiple parties involved in creating the work.
One way to avoid this issue is to have a clear agreement between the creator and the production company. This is because the agreement can stipulate (within the law) who owns the end product and any iterations of it.
Another issue may arise if you create the work as part of your employee duties, in which case your employer may own the copyright in that work.
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How Can Copyright Infringement Arise?
In short, copyright can be infringed if you:
- publish, reproduce or communicate a substantial part of an original work to the public; and
- are not the author of the work and have not obtained the author’s permission, such as a licence.
What is a ‘Substantial Part’?
One of the exceptions to infringement is when your use of another person’s creative work does not amount to a ‘substantial part’ of that work. There is no clear definition of ‘substantial’ in this context. Although, it is often considered a meaningful, memorable, and unique part of a work. Therefore, if you have reproduced a part of someone’s work that is ‘insubstantial’, you may be able to use it without obtaining permission from the copyright owner.
What Does Instagram Say About Copyright Infringement?
In addition to knowing the basic rules of copyright law, you should understand Instagram’s policy that governs your use of Instagram. Under Instagram’s terms, it broadly says that you cannot post anything that would violate someone else’s IP rights. Further, users can report content they believe infringes their copyright to Instagram.
You can violate someone else’s copyright when you post or share their content on Instagram. For example, this can occur in situations where you:
- gave credit to the author;
- modified or added your material to the content; and
- found the content on the internet (e.g., using an image from Google Images).
Therefore, before posting content on Instagram, you should avoid infringing someone else’s copyright. Here are some ways you can do so.
1. Avoid Posting Content You Did Not Create Yourself
The best way to ensure that you do not infringe someone else’s copyright is to post content you have created yourself, unless you are sure you have all the required rights from the content owner. If multiple parties are involved in creating the work, it is a good idea to have a written agreement that clearly states who owns the copyright in that work.
2. Ensure You Have Written Permission
If you need to post or share someone else’s content on Instagram, the best practice is to obtain the author’s permission in writing before posting. If the author is happy for you to post or share their content, they may require you to sign a licence agreement and pay a licence fee.
Alternatively, they may allow you to share the content as long as you credit them in the post. Either way, ensure you get the author’s permission in writing before posting or sharing the content.
3. Know the Exceptions to Copyright Infringement and Seek Advice
In Australia and some other countries, there is an exception to copyright infringement known as ‘fair dealing’ In Australia, the fair dealing exception allows people to use copyrighted material for:
- research or study;
- criticism or review;
- parody or satire;
- reporting news; or
- professional advice.
In addition to satisfying the criteria for one of the categories listed above, you must demonstrate that the use of the copyrighted material is ‘fair’, which is judged based on the circumstances and not personal opinion.
While using someone else’s content may be covered by the fair dealing exception, you should not rely on this unless you have sought advice from a legal professional, as it is not a black-and-white issue.
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Key Takeaways
If you are an Instagram user, you should understand the basic rules about copyright and how these apply when you are posting content. To help make sure you do not infringe the copyrights of other people on Instagram, you should:
- avoid posting content you did not create;
- obtain written permission from the author to post their content otherwise; and
- do not assume the ‘fair dealing’ exception covers you without receiving legal advice first.
If you are unsure about whether your use may infringe on someone else’s copyright, our experienced intellectual property lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Copyright is a type of intellectual property right that protects the original expression of ideas. It is a free and automatic legal right that covers any original creative works. These may include books, drawings, photographs, music or film.
If an original work is published or reproduced by someone who is not the author and who does not have the authors permission, copyright may be infringed.
Copyright on Instagram may be infringed when you post or share someone’s content on Instagram. This can occur even in circumstances where the author has been credited, the content has been modified or where the content was found on the internet.
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