Here are 10 things to know about copyright infringement on Instagram and other social media platforms… and what you can do about it.
1. If your post is original content, it’s likely protected by copyright law automatically.
Copyright arises automatically in original works fixed in a tangible medium of expression. This means that from the moment an author, artist or photographer expresses something unique in a physical, auditory or visual way, the creator obtains an intellectual property right in their work. For most works, the protection lasts for 70 years from the death of the creator, although this varies on a jurisdictional basis. You do not need to formally register your work for it to be protected: you don’t even need to label it with the © copyright symbol (although this is good practice). In the U.S.A. however, you will have to register with the Copyright Office if you wish to bring a lawsuit for infringement. This is not the case here in the United Kingdom.
2. You do not lose your copyright when you upload it to Instagram.
When you upload an image to Instagram, you don’t lose your copyright protection. However, by using Instagram, you agree to their Terms and Conditions (T&Cs), one of which being that you give Instagram a licence to use your image. In non-legal terms, this is really similar to the concept of borrowing. Just because I loan my handbag to you for an evening doesn’t mean that I lose my ownership of that handbag — it’s still mine, but you can use it in a limited way. Likewise, while posting an image on Instagram does give Instagram a non-exclusive, fully paid and royalty-free transferrable sub-licence (!) to use your image, you aren’t waiving your copyright protections. Now, it’s arguable that a social media platform shouldn’t have a de facto licence for user’s images at all, but that’s the subject of a post for another day. For our purposes here, just remember: unless you explicitly waive or assign (give away) your copyright, it’s still yours.
3. If someone has simply copied your idea, it’s probably not protected by copyright.
Every photograph or artwork starts out as an idea, and the journey from concept to final product often involves a lot of hard work and inspiration. But despite the amount of time and thought that has gone into the piece, it’s important to remember that an “idea” in and of itself is not protectable under intellectual property laws. This is because ideas and concepts must remain available for anyone to use and develop in their own way: to do otherwise would unfairly stifle expression and innovation. That said, once an original idea is “put down on paper” or made into something tangible, copyright will arise to protect the specific way in which that idea is actually expressed. For more on this “idea-expression dichotomy“, check out my post, The Copyright Between Oceans?
4. Using copyrighted work without permission is not lawful … unless it is.
Is it ever okay to infringe copyright? Well, not really… but there are a few loopholes to be aware of. For example, if you participate in a brand’s competition, @ a company account in your mentions, or use a particular hashtag, in some situations you may be deemed to have invited the brand to repost your image. In other scenarios, the legal doctrine of “fair dealing” applies may apply, which is an exception. to copyright law. Under this doctrine, people can reproduce work without having to seek permission from the copyright owner, but only in very specific scenarios. These include non-commercial research or study, criticism, educational purposes in schools, review, parody and — unless it is a photograph — the reporting of current events. So in essence, if the infringer is able to demonstrate that they have a defense of fair dealing, you likely won’t be able to do much about it from a copyright perspective. The same concept of this defense is called “fair use” in the United States, although there it is a bit more flexible than the English fair dealing.
5. Crediting doesn’t excuse infringement.
In school, we were taught that copying excerpts of other authors’ work was plagarism, unless you gave them credit in your footnotes. But plagarism isn’t illegal: it’s simply an academic norm which aims to provide attribution for intellectual thoughts. On the other hand, copyright protection is a property right, which has a history rooted in ensuring that creators (musicians and authors in particular) receive payment for their creative efforts. In economic terms, copyright protection incentivises an artist’s investment into their work, by offering a means by which to secure a return on said investment. It’s not about crediting — it’s about cash money. So, if you repost someone else’s content, even if you credit or @ them in your caption, you’re still potentially liable for copyright violation.
This is especially relevant in an age where content creators and influencers are becoming more vocal about receiving fair credit and proper remuneration for their work.
6. Legal action is an option, but it’s not your only option.
If you think you have a case, you could go through the courts and sue for copyright infringement. However, this can be a very difficult process and legal costs can add up quickly — especially if you’re going up against a large brand. It may not be worth the hassle, even if you have a valid cause of action. Instead, many content creators simply pursue some sort of informal resolution as between themselves and the copycat. This may involve sending a message asking them to remove the content in question. Although it’s not necessary, explaining how the infringement impacts you personally might also drive your case home: you could say something like, “I’m glad you liked my photo, but as a freelance photographer I normally charge companies to use my images. As this is my main source of income, it’s really frustrating to see my work ripped off like this without permission.” As a gesture of goodwill, the copycat may even offer to send you a gift or payment — although please see my thoughts on this at Point 8, below.
7. Try the platform’s take down procedures.
Under Instagram’s own T&Cs, account holders agree to not post “private or confidential information or do anything that violates someone else’s rights, including intellectual property.” Because this obligation is contained in the T&Cs, Instagram can investigate allegations of intellectual property infringement and, if proven, delete the offending content. A straightforward option for creators is therefore to try filing a copyright complaint with Instagram using the form available on their website, here. Instagram will review your claim, for which you will need to submit evidence of the infringement, and then potentially remove the offending content. Before submitting the claim, be aware that Instagram may share your contact details with the copycat. It’s also woth remembering that Instagram (like YouTube, Twitter, and other social media giants) is innundated with claims — some of which are genuine, and some not. Action often comes slowly, and the outcome may not be satisfactory.
8. Issuing a retroactive invoice might not work.
When a photographer or artist realises that someone has stolen their work online, they might be tempted to issue an invoice. This is especially the case where a photogrpaher or influencer normally charges for the use of their work by brands and companies. However, it’s important to remember that the requirement to pay an invoice must usually be set out first in a contract or other form of agreement. An agreement can be written or verbal, and enforceable contracts can sometimes even arise in an exchange of emails or DMs. But without an enforceable contract betwen yourself and the copycat, there is no legal obligation requiring the invoice to be paid. That said, issuing a retroactive invoice could work as part of the informal settlement discussed above in point 6, but this depends on the infringer’s willingness to agree.
9. Think before going public.
If all else fails, some individuals may choose to “name and shame” the copycat on social media, especially if it’s a big brand or company. Given the extent to which companies invest and rely upon influencer or other word of mouth advertising, most will be wary of upsetting their target consumers. Of course, even if there is a genuine case of infringement, accusing a brand of violating your copyright or other intellectual property rights carries with it its own risks. For one, it may potentially damage any sort of future relationship you may have with the brand. It may also discourage other brands from working with you in the future, if they see you putting another company on blast. On the other hand, it may also serve to hold brands accountable for their dodgy behaviour, or otherwise discourage them from copying content without permission. This is especially relevant in an age where content creators and influencers are becoming more vocal about receiving fair credit and remuneration for their work.
10. Getting the balance right is an on-going process.
Once you post content online, it’s incredibly difficult to maintain total control over where it is eventually used, shared, or modified. But in many ways, the perpetual cycle of regramming and screenshotting is now an integral aspect of garnering publicity and recognition. It’s admitedly a tricky balance to get right in practical terms, and one which is the subject of much debate in the legal community, too. How can we protect copyright for creators on the one hand, whilst encouraging innovation in the digital economy on the other? Regardless of where you are on your creative journey, there are pros and cons which you should weigh up and consider, before deciding any course of action.
Disclaimer: This post is not a complete guide to online copyright infringement! As always, the information I share is for general information only, and should not be construed as legal advice regarding a specific situation. I 👏 am 👏 not 👏 your 👏 lawyer 👏 (unless I actually am).