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Thursday, July 27th, 2017
Does your business use Instagram to promote itself? If so, beware that posting on Instagram photos taken by others could be copyright infringement.
First, some technology: Instagram does not provide a way for users to “repost” pictures posted by others on Instagram.
There is a workaround. You can screenshot on your phone a picture from Instagram, crop it, and post it to your Instagram account. Various apps also enable reposting of Instagram photos, such as Buffer.
With that background, consider these tales of woe from businesses that posted photos owned by others without permission:
Meet Max Dubler, a professional photographer who covers downhill skateboarding.
He posts his pictures on his website and Facebook page. While he doesn’t charge license fees to individual skaters to repost his pictures, he charges for-profit companies.
Recently, a skateboard company reposted one of his pictures on its Instagram account. Dubler asked the company to pay a $25 license fee.
The skateboard company responded that it didn’t pay for “Instagram shares.” It noted it had given credit to the photographer in its Instagram post. It offered to delete it.
Dubler pressed the issue. He pointed out that the photo is his copyright property and that giving credit doesn’t substitute for getting permission.
He added that offering to take the Instagram post down didn’t cut it because the Instagram followers of the skateboard company already had seen it.
The skateboard company still didn’t pay up, so Dubler got even. He posted on social media about what the skateboarding company did. He got hundreds of likes on his Facebook rant and over 2200 up votes on his Reddit diatribe. Some skateboarders posted videos of themselves throwing the company’s product away.
Also meet Matilda Gattoni, a professional photojournalist. Gattoni took a picture of a woman walking down a street in Morocco and posted it on her Instagram account. Gattoni included a notice of her copyright ownership in the text of her post.
A New York-based clothing company, Tibi, allegedly saw the picture on Instagram, copied it, cropped out the copyright notice, and reposted it on its Instagram page.
Tibi credited Gattoni in the text of its posting, but didn’t get permission from her to repost the photo.
Gattoni recently sued Tibi for copyright infringement. The case isn’t over yet, but a preliminary court opinion makes it clear Gattoni is likely to win her copyright infringement claim and also a second claim over the deletion of the copyright notice.
How can your business avoid falling into this hole?
Above all, get permission to post a photo taken by someone else on your business’s Instagram account.
Giving credit for where you got the image from doesn’t obviate the need to get permission. If you don’t get permission, posting the photo could be copyright infringement.
Sometimes use of a photo taken by someone else might be “fair use,” which is an exception to copyright infringement. The paradigm example of fair use is copying part of someone else’s written work in order to comment upon it.
Unfortunately, there is no bright-line test for what is fair use, so you take a risk in relying on it. And it is tough to establish fair use when you copy an entire artistic work, such as a photo. Also, fair use rarely works where when you’re copying of someone’s work is commercial, such as reposting a photo in a company Instagram account.
If you ask for permission to post someone else’s photo on Instagram, make certain you get permission from the copyright owner.
A person who takes a picture generally owns the copyright to it. But employers generally own the copyright to employee photography done in the course of work, and commercial photographers sometimes assign copyright ownership to their customers.
Also, beware of photo image-rights management companies, such as Getty Images and Corbis. Many professional photographers license their photos through these agencies. These agencies run computer programs to look for unauthorized online use of photos. Clearing up a violation with these agencies will be a hassle and expensive.
Many businesses use Instagram to build goodwill with their customer base by soliciting “user generated content.” They encourage customers to take and post photos of themselves on their Instagram accounts using the businesses’ products or services.
Of course, these businesses want to repost these pictures. Before doing so, a business should state up front that anyone participating gives approval for the picture to be reposted on the business’s Instagram account and in any other usage the business will make of the photo.
Get the picture?
Written on July 27, 2017.
by John B. Farmer
© 2017 Leading-Edge Law Group, PLC. All rights reserved.