You’re familiar with the hugely popular photo- (and video) sharing app called Instagram, right? That’s more of a rhetorical question, really, since you’ve come to my site. I’ll work under the assumption that you not only know what Instagram is but also have it on at least one of your mobile devices. I won’t assume you know that you can also check out your feed on a desktop or laptop computer, but you can.
Anyway, it’s fun to upload photos you take and check out what others are sharing. It’s a great way to be an armchair traveler, figure out new places to eat, or even become depressed because your life isn’t as fabulous as everyone else. Oh, the fabulousness! It’s all over Instagram.
Amazing landscape photos that would make Ansel Adams seem average. Food photography suitable for any high-end magazine. And so much more. Truly, the stream of drool-worth photos is phenomenal. According to Instagram, on average 55 million photos are shared daily. That comes to about 2.3 million photos an hour! No wonder we can get sucked in to Instagram.
US Copyright law, generally, says that if you take the photo then you own the copyright. It doesn’t matter if the photo (or video) was taken with a mobile device that didn’t exist when the law was written. There are some exceptions for Works for Hire, licenses, governmental works, derivative works, etc. But, we’ll go with the general understanding that if you hold up your mobile device and take a photo (or use an app to create a graphic) then you own the copyright and have a host of exclusive rights that go with it.
Are You Using Instagram In A Way That Could Get You Sued or Suspended?
Instagram’s Community Guidelines specifically say not to share photos or videos that aren’t yours. Yet, we see it all the time. Sure, maybe some have received permission but I’m not so sure about that. Maybe a photographer doesn’t mind someone else posting their work without giving any attribution, making it seem like the Instagrammer is the one who took the photo. Passing off someone else’s work as your own is called plagiarism and isn’t illegal so, it may pass muster. But, ethically, it’s a problem. And, honestly, in reality how many photographers do you know who’d say “sure, go ahead and post my photo but don’t worry about giving me credit”. If you can think of one, let me know so I can talk to him or her.
Even more puzzling to me is the fact that there are apps that pull the Instagram API and are specifically for reposting other people’s content without having to obtain their express authorization. Does it matter? To many people, yes it does matter because these apps are enabling users to violate US copyright law almost every time the app is used.
The apps are usually pulling images using the Instagram API, so there is some tacit agreement between Instagram and the various users. In addition, at least most of these apps give credit to the original user, which is better than nothing. However, adding the user’s name to the image doesn’t absolve the person reposting from potential liability for copyright infringement if the app is not compliant. At least there is a way to identify the potential copyright holder. I find it interesting that the repost does not always tag the original user, making it difficult for the original user to track potentially infringing uses.
What’s the big deal, you ask? In reality, for some people nothing. For others, though, the big deal is that their work is being stolen. Unfortunately, technology, law, and reality aren’t always so in sync. Will someone really want to pay to sue someone over an alleged copyright violation on Instagram? Perhaps. I know of professional photographers who’ve had their images used by major magazines on Instagram and have requested payment, and got it. I also know of people who’ve filed DMCA takedowns and had Instagram accounts suspended.
I also know people who are incessantly harassed by other Instagram users and their followers if they ask to have their copyrighted image taken down. It’s not always for an extraordinary or exceptional image either. I’ve seen users grab images of another user’s Starbucks, dessert, tech devices, and much more. Most don’t give any attribution, but they’re found anyway.
Should we care about getting permission or giving attribution for Instagram photos or videos? I think so. Besides being the law, it’s the polite thing to do. Every day I get emails from people who are being billed for using, without permission, someone else’s photo. I also get emails from people whose images are used without permission asking what they should do. Obviously, this is a problem. On both sides.
So, what to do?
Second, if you do get permission, give attribution so it’s clear to someone else these are not your photos. As the copyright holder how attribution should be given. On Instagram it might be simple enough to add the username to the image, but tagging the person may be more helpful so they can track the sharing of their work.
Finally, don’t crop out someone’s watermark. We call it a watermark but the US Copyright Act calls it Copyright Management Data and provides for what is essentially a fast track to damages for copyright holders. While the biggest challenge may be actually finding someone, under the Digital Millennium Copyright Act (DMCA) if you can show the alleged infringer removed or altered your copyright information and used your work in an unauthorized manner you may recover damages which start at $2,500 and go up to $25,000 and allow for recovery of attorney’s fees as well as damages related to the infringement.
So, there you have it. The basics of copyright and attribution on Instagram are easy to follow. Just upload images or videos you take or create, or share those you’re given permission to share and you’re good to go!
What’s your experience with copyright and attribution using Instagram?