There is a widespread belief in marketing circles that reposting someone else’s photos from Instagram or even taking them to use in a campaign for your startup is acceptable as long as you credit the owner. It can be especially tempting to copy and share images when a social media influencer tags your product in a post. However, reposting without permission could amount to a breach of copyright and consumer laws.
This blog is the second in a series on Marketing your Startup: Risks, Tips and Traps which will highlight some key risks which startups should watch out for and some tips to avoid the risk of a legal claim. See our other blogs here.
Everyone is doing it, so what is the big deal?
Photos published online are ‘artistic works’ protected by copyright, which means the copyright owner, usually the person who took the photo, has the exclusive right to reproduce, publish and communicate the work to the public. As such, photos published online can only be reproduced with permission from copyright owner. For more detail on the risks of copyright infringement, see our blog here.
A common frustration amongst Instagram users is that unlike Twitter and Facebook, the platform does not have a native ‘share’ function allowing people to share images they like to their own account. Instead, users will often take a screenshot of the image or use a third party app, in order to share the original post. However, the act of taking a screenshot or reposting an image necessarily involves reproducing and publishing the original work. This will likely be a copyright infringement, unless you have the owner’s permission.
The question, therefore, is whether or not the owner of the image posted on Instagram has given permission for the work to be reproduced. To answer that question, we need to look at Instagram’s terms and conditions.
Upon joining Instagram, users agree to the platform’s terms and conditions, including conditions relating to ownership and use of content. Users warrant that they own the content posted on their account and grant a broad licence to Instagram to use the content in certain ways. However, unlike some other social media platforms, there is no licence granted to other Instagram users to repost or share content. As such, marketers need to make sure they obtain express permission from the copyright owner before reposting or copying Instagram content, or they are likely to breach that person’s copyright.
Interestingly, Instagram does include a function that allows users to share content to Facebook. It is arguable that Instagram users, by using the platform, have consented to content being shared in this way. However, if by sharing another person’s content you suggest some sort of association or affiliation with your business when no such association or affiliation exists, you may be found to have engaged in misleading or deceptive conduct contrary to the Australian Consumer Law. It is always best, therefore, to seek permission before sharing someone else’s content for a commercial purpose.
Methods to obtain permission include making a request in the comments below a post, direct messaging the individual through Instagram or contacting them outside the platform. Often, Instagram users will be happy for their images to be shared, but on occasion, and especially for social media influencers or professional photographers, they may request payment of a fee in exchange for a licence to use the image. For popular influencers, the fees can be extravagant and many companies enter into unique social influencer agreements.
Other social media
The circumstances are different for other social media platforms. For example, Facebook’s terms and conditions explicitly refer to the ‘share’ functionality, which means users agree that their content might be shared by others (subject to their privacy and security settings) on the platform itself. In those circumstances, it is generally acceptable to use the built-in functionality of Facebook to share content, because the individual has given their permission by signing up for an account and uploading content. However, that still does not give you permission to repost to another platform or to use the content in campaigns generally, and care still needs to be taken not to create a misleading impression that the person or influencer whose content you are sharing endorses your business.
For more detail on social influencers and the risks of misleading or deceptive conduct, see our blog here.
A useful rule of thumb when trying to figure out if you are allowed to share content is to consider whether or not you are using an inbuilt functionality of the social media platform.
If so, you are generally able to share the content by using that functionality (subject to any express statements on the person’s account to the contrary) without infringing copyright.
If not (e.g. on Instagram which does not allow reposting), or if you are sharing the content outside the platform (e.g. as part of a bigger campaign) you will generally need to get permission or risk copyright infringement.
If you are seeking to leverage the popularity or reputation of another person or product to promote your business, consider if you are falsely suggesting an endorsement or affiliation. If so, you may be engaging in misleading or deceptive conduct contrary to the law.
We hope you enjoyed our second blog in a series of blogs about Marketing your Startup: Risks, Tips and Traps