Instagram users will know that it is a great way to share creative content, and with a community of over 1 billion users, your photo or video has the potential to reach people around the world. With the chance that your content could have a global audience, it is important to understand how Instagram treats different copyright issues that arise as a result of posting your content on the platform. This article will consider key copyright issues arising from posting your content on Instagram and how your content could infringe on the copyright of others.
What is Copyright?
Copyright is a type of intellectual property (IP) right that protects the original expression of ideas, including:
- music; and
Copyright is a free and automatic legal right in Australia. This means that the copyright in your work is automatically protected in Australia as soon as it is created or documented. However, it is important to understand that only original and creative works are eligible for copyright protection. The author must have created the work, rather than it being derived or copied from someone else.
Who Owns Copyright?
Generally, the person who creates the original work will own the copyright. This means that you are the legal owner of a photo from the moment you take it. As the legal owner, you have the exclusive right to post the photo on your Instagram account and to otherwise publish or reproduce the image in any way.
However, if there are multiple parties involved in creating the work there can be issues.
For example, imagine you make some video content for your Instagram intending to post the whole piece in multiple posts or stories but you send the raw footage to a production company to edit and finalise other aspects of production such as colour grading and music. It is logical from an outsider that you are likely to own the copyright in the raw footage, however, after the production company has finalised the content, there may be some confusion around who owns the final product that gets posted.
If there is a clear agreement in place between the creator and the production company then this can minimise confusion. This is because the agreement can stipulate (within the law) who owns the end product and any iterations of it.
Another issue that may arise is if you create the work as part of your employee duties, in which case your employer may own the copyright in that work.
For example, if a production company employs you to edit content for Instagram influencers, your employer may own the copyright in the materials that you create for others.
Therefore, it is important to seek advice if you are unsure about whether you own the copyright in a work.
How Can Copyright be Infringed?
In short, copyright can be infringed if you publish, reproduce or communicate an original work to the public and you are not the author of the work and have not obtained the author's permission, such as a license.
What Does Instagram Say About Copyright Infringement?
In addition to knowing the basic rules about copyright law, you should understand Instagram's policy that governs your use of Instagram. Under Instagram's terms, it broadly says that you cannot post anything that would violate someone else's IP rights. Further, users can report content that they believe infringes their copyright to Instagram.
You can violate someone else's copyright when you post or share their content on Instagram, even in situations where you, for example:
- gave credit to the author;
- modified or added your own material to the content; and
- found the content on the internet (e.g., using an image from Google Images).
Therefore, before posting content on Instagram, you should take care to avoid infringing someone else's copyright. Here are some ways you can do so.
1. Avoid Posting Content You Did Not Create Yourself
The best way to ensure that you do not infringe someone else's copyright is only to post content that you have created yourself unless you are sure that you have all the required rights from the content owner. If there are multiple parties involved in creating the work, it is a good idea to have a written agreement that clearly states who owns the copyright in that work.
2. Ensure You Have Written Permission to Use Someone Else's Content
If you need to post or share someone else's content on Instagram, the best practice is to obtain the author's permission in writing before posting. If the author is happy for you to post or share their content, they may require you to sign a license agreement and pay a license fee.
Alternatively, they may allow you to share the content as long as you give credit to them in the post. Either way, make sure you get the author's permission in writing first before posting or sharing the content.
3. Know the Exceptions to Copyright Infringement and Seek Advice
In Australia and some other countries, there is an exception to copyright infringement known as 'fair dealing' or 'fair use' (depending on your state or territory). There are differences between the two exceptions, so it is essential to know what applies here. In Australia, the fair dealing exception allows people to use copyrighted material for the purposes of:
- research or study;
- criticism or review;
- parody or satire; or
- reporting news.
In addition to satisfying the criteria for one of the categories listed above, you must demonstrate that the use of the copyrighted material is 'fair', which is judged based on the circumstances and not personal opinion.
While using someone else's content may be covered by the fair dealing exception, you should not rely on this unless you have sought advice from a legal professional as it is not a black and white issue.
If you are an Instagram user, you should understand the basic rules about copyright and how these apply when you are posting content. To help make sure you do not infringe the copyrights of other people on Instagram, you should:
- avoid posting content you did not create;
- obtain written permission from the author to post their content otherwise; and
- do not assume the 'fair dealing' exception covers you without receiving legal advice first.