In 2015, Brisbane teenager Lydia Jahnke posted an Instagram photo of herself standing on top of a mountain in Lorna Jane clothing. The activewear brand then used the image on T-shirts bearing the caption, “the woman on top of the mountain did not fall there”. Many businesses use Instagram for marketing and advertising purposes. Below, we discuss when they can and cannot use social media posts without falling foul of the law.
Can I Use a Customer’s Posts?
Whether you can use a customer’s posts depends on whether your business has complied with the legal requirements to avoid copyright infringement on Instagram. Instagram’s terms and conditions explicitly state that the copyright for any image posted belongs to the person who took the photo. If a business would like to use that image in their marketing, they must observe all relevant copyright processes.
Copyright protects ideas or information produced in material form. In Australia, the Copyright Act 1968 (Cth) regulates copyright and states that it is personal property. If a third party wishes to use or exploit that work, they must ask the owner for permission and obtain a licence. Obtaining a licence requires the business to pay a fee and make a formal agreement with the copyright owner via the division of profits from the use of that work.
Copyright Infringement and Lorna Jane
In this context, Ms Jahnke was the subject of the photo (not the author) and as such, it was unclear whether she owned the copyright. If Ms Jahnke did not take the photo herself, did the author assign her the rights to use the photo? Further, depending on whether Ms Jahnke had an assignment or not, who is the appropriate party to take action against the activewear brand.
Another suggestion was that Ms Janke waived her right to the Instagram post. When she learned that Lorna Jane was using it, she emailed the company and requested a t-shirt. Arguably, her acceptance of the t-shirt would relinquish her rights to the image at which point, Lorna Jane would be able to use the image freely. It is unclear as to whether this argument would have succeeded as Ms Jahnke did not pursue the matter through court.
Irrespectively, brands should exercise best practice and err on the side of caution – always seek permission from the photographer and the photo’s subject before using it in your marketing campaigns.
Using a customer’s Instagram post is an increasingly common marketing strategy and a great way to reach and engage with your customers. The upshot for all businesses is that if you want to use a customer’s Instagram post, you need to do your due diligence. Ask their permission and if the original author agrees, enter into a formal licence agreement.
If you have any questions about the legals involved with Instagram marketing, get in touch with our IP lawyers on 1300 544 755.
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