In this article I'm looking at your rights as a content creator when posting on the social media platform, Instagram.

A brief introduction

If you're reading this, you probably know what Instagram is but for the sake of completeness I'll just leave this here...

Instagram is a photo-sharing social media app that allows users to share images and videos either publicly or privately, more recently it has included the addition of 'stories' and other temporary content in line with the increasing popularity of app's like SnapChat. Instagram started in 2010 as an exclusive mobile app for iOS but by April 2012 had bridged over onto Android, as of April 2017 Instagram has 700 million users who have posted over 40 billion photos’.

The question...

So, now you have a brief background on Instagram onto the question; Who owns the 40 billion photo's currently on Instagram? Who can use them? Who can share them? And; What are your rights when you upload your images to Instagram?

Content creators may find their photos anywhere from being shared as someone else's work to being printed on t-shirts and sold in China. In fact this is such a common occurrence amongst influencers that many have turned to agents and tools to keep track of their content and ensure it is not being stolen.

However; whether you’re pushing 100K followers or have just released your 10th post on Instagram this year, a common theme is users aren't sure exactly what their rights are and often don’t know where they stand if someone else uses or reposts their content. (I'll explore fan art and derivative works in a separate article, this will just explore your usage of the original image)

Who owns your content?

Unlike some platforms, submitting content to Instagram is very clear, their Terms of Use  state:

"Instagram does not claim ownership of any Content that you post on or through the Service."

So, how can they use your content? By using Instagram, you are granting them a license to use your content; specifically a:

"non-exclusive, fully paid and royalty free, transferable, sub-licensable, worldwide license to use the content you post on or through [Instagram]". 

Breaking this down, Instagram and their subsidiaries or partners can display your content on their sites without needing to ask specific permission from you and in the event that someone buys Instagram or becomes part of Instagram they will retain the right to display your content. This is a fairly standard image license in social media and is intended to protect Instagram from users seeking to claim royalties or breach of copyright etc.

So, that seems straight forward; But...

Who can use your content and why all the confusion?

Image rights are probably the single-most misunderstood area of content usage on social media platforms, so hopefully in going through this we can debunk a couple of myths and make you feel a bit more confident with your rights.

Myth #1; You posted it on Instagram so it's in the 'Public Domain'

This is something I've heard many times, users re-purpose an image and when challenged by the creator state ‘once the image is on Instagram it becomes fair game for anyone to use'. Fortunately for creators this is simply not the case. By posting to Instagram you are granting Instagram and its direct partners (not users) a license to display your image. This sometimes goes a step further and users state that the image is in the Public Domain. However public domain is a particular status which requires a creator to have relinquished all rights to the image, which is absolutely not the case when posting to Instagram (or most other platforms). 

A small aside to this, which is also often misquoted is that images taken from Wikipedia’s Creative Commons are also not in the Public Domain, but creators have granted a broad conditional license for usage. In the case of Creative Commons images, it's the users job to check what the conditions are for usage.

This is the one myth where creators often receive the strongest backlash as misinformed users adamantly proclaim the right to use a creator’s content. Creators, sleep easy. You are in the right here!

Myth #2; Re-posting is fine

This is the most common breach of intellectual property and comes from the ability to 'share' on platforms such as Facebook, however on Instagram users don't have the right to re-post another users image. In fact Instagram is very clear about this and reiterates their position throughout their website:

"Instagram is committed to helping people and organizations protect their intellectual property rights. The Instagram Terms of Use do not allow posting content that violates someone else’s intellectual property rights, including copyright and trademark."

The 'Terms of Use' section applicable is 'Basic Terms: 2' "You may not post [..] Infringing [..] content via the service" (I removed the rest of the list).

Myth #3; I credited so it's O.K.

This one is another 'nope' I'm afraid, and is often given as an excuse particularly by bloggers and businesses, although crediting is a good practice and at least shows good intention it does not allow someone to re-post an image. A license has to be granted by the author before an image can be used. Credit does not and cannot create a license to use and image, if it did the creator would be unable to control usage of their content.

Exceptions

It wouldn't be right to leave this topic without mentioning 'Fair Usage', there are a few situations where someone will have the right to use content you post on Instagram and you should be aware of them. These usages would have to fall under 'Fair Usage' generally, unless you have granted a license. Fair Usage is a large topic to discuss within this article so I won't discuss what each of the exceptions are in detail , anyone relying on fair usage should take extra care to educate themselves on its application. However as a general rule the following should be a guide to creators:

  • Fair Usage does not automatically apply; exceptions are a guide not a rule.
  • Fair Usage is a balancing act, some criteria favour its application others oppose it.
  • It is usually easier to ask permission, both as best practice and to ensure your usage is more likely to be fair if challenged.
  • It is rare for usages with a commercial aspect to be considered 'fair' without consent.

Post with confidence

In summary, when you post to Instagram you retain all rights to your content. If someone uses your Instagram content without permission on or off Instagram, you have all the usual rights granted under the copyright laws of your country and this will, in most cases, apply internationally. If someone hasn't asked permission and you haven't licensed your image to them then you can prevent people from using your image either by issuing a DMCA (in the case of Instagram) or a legal channel in your country.

Most intellectual property infringement on Instagram comes from users either misinforming themselves on copyright law or misunderstanding from the legal language used in the Terms of Use. It is relatively rare for users to intentionally steal or present content as their own and very often their usage is intended to flatter the creator. That said this doesn't make the usage acceptable, good intentions or not, usage without permission is still an infringement.

Fortunately, the laws and Terms of Usage on Instagram are firmly in favour of creators.

A Disclaimer

This article is aimed as a guide to content creators and is not a statement of law, different countries laws and situations surrounding your content can complicate issues. You should always seek legal advice from a legal professional if you cannot resolve content issues amicably.