Imitation is the sincerest form of flattery – Oscar Wilde

In case you missed it, photo-sharing social platform, Instagram, generated controversy last week following the launch of its ‘Stories’ feature. In response to whether Instagram Stories was a clone of Snapchat Stories, Instagram’s co-founder and CEO Kevin Systrom admitted Snapchat deserved all the credit. This raised a number of questions including, is it legal for Instagram to copy Snapchat Stories? If you have used Instagram’s newest feature and wondered about these similarities, we discuss whether replicating another brand’s feature is permissible as well as whether this should be encouraged.

Did Instagram Stories Copy Snapchat?

Instagram debuted its Stories feature on 2 August 2016. The new feature will be available to users worldwide in the coming weeks. On its launch, Systrom told the Wall Street Journal that the company wanted to give its users a space where they felt ‘free to post whatever . . .  [they] want without the nagging fear of, did someone like that or not?‘ 

The feature permits users to access stories from friends by tapping their profile picture. A user tells a story with photos and videos from the preceding day. They can enhance it with stickers, text and drawings. A user cannot comment on someone’s story, but can message them directly using Instagram Direct. The story vanishes after 24 hours.

It’s a canny commercial move by Instagram. While the company’s average number of posts per user declined between 2013 and 2015, Snapchat usage increased 25% between February and April 2016. It also reached approximately 10 billion views per day. Snapchat is growing and continuing to engage with users. Unsurprisingly, Facebook, who owns Instagram, has already made an offer of $3 billion to buy Snapchat which was rejected.

All of which would be entirely unremarkable from a legal perspective if Instagram’s new feature didn’t almost exactly resemble Snapchat’s Stories, first launched in 2013. That feature also permits users to group snaps into one narrative that disappears after 24 hours. There are, however, minor differences:  a “+” icon in the upper left-hand corner of your Instagram display. As Brian Barrett remarked: ‘It’s rare to see a rip-off this blatant . . . This isn’t just like Snapchat, it is Snapchat’. Nor is Instagram denying or shrinking from these similarities.

What Does the Law Say?

While Systrom is adamant that no one is disparaging Instagram for their new feature, many are wondering how and why the company has not broken intellectual property laws.

Instagram has been legally able to launch and market their Stories feature in part because the idea of stories per se is not new. Professor R. Polk Wagner of the University of Pennsylvania notes that the patent and copyright that Snapchat has for their stories feature likely relates to its specific implementation and interface. Instagram Stories operate under a different and distinct application and interface (to which their patent and copyright would relate). In such a case, intellectual property law gives neither protection nor remedy. That is not to suggest it never could. However, the point of legal intervention has not yet been reached. If Instagram stories resembled Snapchat stories in looks (as well as in function and spirit), there might be a legal issue. 

This nuanced legal explanation could understandably leave Australian entrepreneurs confused. To the naked eye, Instagram has literally copied Snapchat without breaking the law. How could this apply to their app or startup idea?

Could This Happen in Australia?

Snapchat and Instagram’s face-off remind us that intellectual property captures more than black-letter law – it must balance competing interests including the creator’s rights and fostering competition and innovation.

For example, consider if the courts and government agencies gave uneven weight to the rights of creators and inventors when interpreting the Patents Act 1990 (Cth) or Copyright Act 1968 (Cth)). This would consequently restrict the sharing of information and the potential benefit to the community.

This is not to suggest that entrepreneurs ought not to profit justly from their endeavours. Rather, if such knowledge is needlessly and incorrectly restricted and accessible only at a price, it would have important social effects. For example, it may needlessly stifle further economic activity and restrict competition because others could not freely or affordably use the technology in other contexts for other purposes. This would be especially problematic in the context of the Federal Government’s Ideas Boom.

Further, in circumstances where a few individuals have an unjustifiable monopoly on technology, consumers are more likely to be disadvantaged. Conversely, if the law is too restrictive in granting patents or copyright, it could stifle innovation and inhibit economic activity. Local entrepreneurs could choose to go overseas to protect and market their work. Competition and consumers would likely be negatively affected simply because there are fewer participants and suppliers in the market.

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How you construe Instagram’s candid copying depends on perspective. Entourage Founder, Jack Delosa, notes that creative borrowing in the technology sector is not new. And consumers appear seemingly more interested in innovation, rather than invention. Through this lens, Apple’s ‘brilliance’ was ‘finding an invention, adding innovation and wrapping it in something that touches our heart in a way that other technologies don’t’. The short take on Instagram stories: constantly innovate and stay a step ahead.

What do you think about Instagram copying Snapchat Stories? Let us know your thoughts on LegalVision’s Twitter page.

Carole Hemingway

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