With Instagram being a viable source of income, self-made Instagram influencers should take the time to understand their intellectual property (IP) rights. Instagram has its own set of rules regulating IP. However, if you are also entering into contractual arrangements with businesses, there are a few other considerations to make before pressing ‘post’. This article will outline some of these considerations, including issues surrounding copyright and IP.

What is Copyright?

The Copyright Act 1968 (Cth) applies throughout Australia and protects the creation of:

  • literary;
  • dramatic;
  • musical; or
  • artistic works.

Generally, the creator of these works will be the legal owner of the work. The recognition of this ownership occurs automatically, and does not need to be registered or paid for. This means that once you take a selfie, you are the legal owner of that selfie. As the legal owner, you have the right to exclusively:

  • reproduce the work;
  • communicate the work; or
  • make the work public.

For photos, this means that you hold the exclusive right to post the photo on Instagram. Issues may arise from this standard position if there are more than two people involved in creating the work.

For example, you take a selfie and then send it to a creative agency to make the final edits. In this scenario, it is a good idea to have a written agreement in place that states who actually owns the copyright in the photo. The written agreement can alter the standard position, assigning ownership to whoever the agreed upon party is.

What Does Instagram Say About Your Copyright Rights?

Your copyright rights to a photo do not change when you post a photo on Instagram. This means that you are still the legal owner. However, once you upload the photo, Instagram is also granted a licence to use the photo. This licence allows them to:

  • host;
  • use;
  • distribute;
  • modify;
  • run;
  • display;
  • copy; or
  • create derivative works of the photos that you upload.

Instagram can also transfer or sub-license their licensing rights to third parties. These sub-licensing rights may extend to any of their affiliates or partner businesses.

Instagram’s licence to use your photo ends when you delete the photo (or your account), it may still appear on Instagram if someone else has posted your photo on their account.

What Arrangement Will You Have With Businesses?

If you are an Instagram influencer that is entering a business relationship with a brand for marketing or promotional purposes, a key consideration you need to make is whether you will:

  1. transfer ownership of your IP to the business; or
  2. only provide them with certain licensing rights to the photos.

This issue can arise in three common scenarios for Instagram influencers:

Transfer Ownership of Photos

Once you create a photo, you may agree that the business that commissioned you to promote their brand will own the photo.

Although this may sound unusual, it is common practice for people to transfer their ownership rights to third parties – this even commonly occurs in employment relationships.

License Photos

To retain your ownership rights, you should ensure that any agreement you enter states that you have ownership of the photo. This will mean that any of the business’ rights to the photo will be through a licence only.

For example, a business may want to use your photo by sharing it on their social media page, as well as their website. You should ensure the scope of the licence will cover the business’ intended use.

Provide Services

Another possibility is that the business does not want any ownership or licensing rights to your photos, but simply wants you to undertake specific services. This could be creating and posting photos on your Instagram account based on their specific instructions.

One of those instructions may be that their business name needs to be included on all of the relevant posts.

 

Key Considerations for Business Arrangements

If you are negotiating an agreement with a business as an Instagram influencer, you should consider the following:

Licence: Usage

If you only wish to license your photos to the business, consider how the business will be able to use your photos.  

For example, you may wish to restrict their use of the photo to one product to avoid your photos being used for products that you do not want to be associated with. You may also wish to prevent them from being able to modify your photo.

Licence: Exclusivity

If you are providing a business with a licence to use your photos, think about whether the business will have exclusivity of use. This depends on the commercial arrangement you have with the business.

However, it is important to note that exclusivity may also restrict you from allowing other businesses to use the photo, and may restrict you from sharing your photo on Instagram. You should carefully consider the wording of the exclusivity clause, as very restrictive clauses may lead to you breach the terms without realising.

Transfer Ownership: Your Use

If you are an Instagram influencer, it is likely that, although the business may want ownership of your photos, they still want you to post your photo or promote their business in some way.

When transferring ownership of your photo, ensure that you are granted a licence to use the photo for particular purposes. For example, posting the photo on Instagram. This is important because under Instagram’s terms and conditions, you are not able to violate another party’s IP rights. If you are not the owner of a photo, posting it on your Instagram violate the business’ IP rights.

Provide Services

You should avoid entering any contract where the business is commissioning you to take and post specific photos which may contravene your obligations on Instagram. This may lead to your account being deleted.  

Here, you should include an acknowledgement from the business that any services you provide will be subject to relevant third party terms and conditions.

 

Key Takeaways

Entering a commercial agreement can be very tricky, especially if you want to ensure that you protect your IP and copyright rights in the process. Before entering an agreement to promote a brand or product on Instagram, consider:

  • your IP and copyright rights; and
  • the potential use of your photos, both in the present and future. 

If you have any questions, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

Kristine Biason
If you would like further information on any of the topics mentioned in this article, please get in touch using the form on this page.
If you would like to receive a free fixed-fee quote for a legal matter, please get in touch using the form on this page.