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When someone takes a photograph, the image is immediately protected by copyright law in Australia. The photographer then has the exclusive right to use and sell the image and can enforce their copyright against anyone who infringes upon their rights. Users of the popular social media platform, Instagram, are in a slightly different position than conventional photographers. This article explains who owns the copyright to photos uploaded to Instagram as well as how users can enforce their rights.

Copyright Ownership and Instagram’s Terms of Use

Strictly speaking, when users upload an image to Instagram, they do not forfeit their copyright. Instead, Instagram’s Terms of Use operate so as to give the social media platform a non-exclusive, fully paid and royalty-free transferable, sub-licence to use the content. This means that Instagram can license images from the site to others – including other Instagram users who can ‘regram’ images (repost photos) from accounts that they follow without infringing copyright.

Hypothetically, Instagram’s Terms of Use enable the company to select images that users have posted on the site and sell them to a third-party marketing company. It’s unlikely, however, that the company would engage in such behaviour as it would alienate users.

Fair Dealing and Instagram Images

It’s important for Instagram users to know that if a third party uses an image from their feed, the fair dealing principle may protect their use. The principle sets out a number of exceptions against using copyrighted material without securing the owner’s permission, namely:

  • research or study,
  • criticism or review,
  • parody or satire,
  • reporting news, or
  • professional legal advice.

In 2015, New York artist Richard Prince caused controversy by selling canvasses featuring images that he had sourced on Instagram. A few of the users attempted to prevent Prince from using their work, but as he had added captions to the images in such a way that altered and/or added to their meaning, his work was deemed to be protected by fair use (the US equivalent of fair dealing).

Infringement

In all other situations where an individual or business sources images from Instagram – and neither Instagram nor the user who posted the image has given permission – then copyright infringement will have taken place. Social media users will be well within their rights to send a cease and desist letter and to ask for appropriate compensation. If necessary, they will be able to pursue justice through the courts.

For example, Tourism Tasmania has recently come under fire after using images posted on Instagram as part of a display in Tasmania’s airport. Photographers had taken the images and shared them on the social media platform so that they appeared as part of Tourism Tasmania’s feed. However, they had not given permission for their work to be reproduced in another medium, off Instagram and in a commercial context. As a result, if the photographers rook legal action, they would likely be successful.

This scenario acts as a cautionary tale for government bodies, businesses and corporations looking to source images from social media. It also acts as a model for social media users on how best to best enforce their rights.

Key Takeaways

When someone uploads a photograph to Instagram, they retain the copyright to the image. Instagram, however, does gain a non-exclusive, fully paid and royalty-free transferable, sub-licence to use the content uploaded to its platform, but are unlikely to license a posters’ image for profit as doing so would put users offside. This means that Instagram can use the content as it chooses and can also licence the content to third parties. 

Instagram users seeking to enforce their rights also have to be aware of the fair dealing principle. If third parties make use of images posted on Instagram without licensing them from either the original poster or from Instagram itself, then users can possibly access a legal remedy.

If you have any questions or need assistance enforcing your IP rights, get in touch with our IP lawyers on 1300 544 755.

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