17th March 2018 - Lara Alexandra

Instagram has more than 800 million active users and is one of the most popular social media platforms in the world. This is a huge marketing opportunity as it is an ideal platform for some of the best emerging talent to market their creations.

Many people use Instagram to market their designs and artwork, especially for those who are just starting out in business. It is a cost-effective way to get their brand out there and at the same time make sales.

It is important to know that if you post photographs or content that you find on the Internet without the copyright owner’s permission, you are infringing copyright law.

What is copyright?

Copyright consists in an original work of authorship that is fixed in any tangible medium. If someone takes a photo or writes an article, it is automatically protected under copyright law. By copying and recycling another’s work, copiers are undermining the value, originality and creativity in that work, particularly if that work is being used without permission to sell another person’s products and services.

This is generally a free and automatic right that arises from the moment that you create it. Only original works are eligible for copyright protection and usually the person who creates an original work owns the copyright in it.

Copyright only protects the original expression of ideas. This applies to certain forms of creative work such as literary works, musical works and dramatic works.

Copyright laws vary by country. Copyright typically expires fifty to one hundred years after the author dies depending on the jurisdiction as copyright laws are territorial in nature. Typically, registration is not required by copyrights.

Instagram’s Terms of Use and Community Guidelines

Under Instagram’s Terms of Use and Community Guidelines, you can only post content to Instagram if it does not infringe the intellectual property rights of another person.

This is because copyright is a legal right that protects original works of authorship. Copyright law grants the creator of a work exclusive rights for its use and distribution.

You may post other people’s content if you have obtained authorisation to use that content, for example, by way of a license or if your content is covered by an exception to the copyright laws.

What can I do?

You can report copyright infringement to Instagram. When Instagram receives a report from a copyright owner, they may remove that content without contacting the user first. If a user repeatedly posts content that infringes another’s intellectual property rights, Instagram may disable an Instagram account under Instagram’s repeat infringer policy. Only the copyright owner or their authorised representative can file a report of copyright infringement to Instagram.

Instagram considers that submitting a report of copyright infringement to be a serious matter and that you should consider whether the use of your content is a permissible use. If you intentionally submit misleading or fraudulent reports, Instagram make take appropriate action such as terminating your account.

Content owners can also enforce their legal rights by writing a cease and desist letter to the infringer. It is best to have a lawyer draft a notice like this on your behalf as these letters are often a precursor to legal proceedings. There are also provisions under the Copyright Act 1968 (Cth) which deal with groundless threats of legal action otherwise known as “unjustified threats” or “groundless threats”.

Section 202(1) of the Act states that where a person is threatened in respect of copyright infringement, that person may bring an action for a declaration that the threats are unjustifiable, an injunction against the continuance of the threats and an award of damages.

You can also use software to track your photos online that connect to your Instagram account. The software will continuously monitor your photos and check across the web to discover where and how your images are being used online.

You can watermark your online content with copyright symbols and other tools that will help you protect your works.

Take-away points

Before you post content on Instagram, you should consider:

• Is the content original?
• Did I create the content?
• If not, do I have permission to use it?
• If I have permission, credit the artist

Lara Alexandra, Legal Assistant and Trade Mark Administrator

We are a team of trade mark attorney and IP specialists based on Gold Coast and Sydney. If you have any questions about trade mark and brand protection, contact us on 1300 77 66 14

 

 
Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.