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Instagram can be a powerful marketing tool for your business and a great way to attract a new customer base through your online following. As in many cases, your creative content could even end up having a global reach.
However, as you end up amassing more of a following, the risk of your content being reposted or shared without your permission also increases. This could be infringing some of your intellectual property, whether it is your registered trade mark or your copyrighted content.
We’ll take you through the best ways to prevent infringement, address infringement and how to avoid infringement yourself.
Do I Own The Copyright On My Instagram Post?
Yes, if you are the original creator.
Under Australian intellectual property law, copyright is automatic and free — meaning that as soon as you create an original work (such as a photo or video), you own the copyright without needing to register it.
However, there are exceptions:
- If you post someone else’s content without permission, you do not own the copyright.
- If you create content as part of your employment, your employer might own the copyright, depending on your contract.
When you upload content to Instagram, you retain copyright ownership, but you also grant Instagram a broad license to use your content in various ways. This means that while you still legally own your photos and videos, Instagram has certain rights over them while they remain on the platform.
Instagram’s Non-Exclusive Rights
Instagram’s Terms of Use grant a non-exclusive, royalty-free, worldwide, transferable, and sub-licensable license over the content you share. This allows Instagram to host, use, distribute, modify, copy, publicly perform or display, translate, and create derivative works from your content.
Importantly, this license does not mean Instagram owns your content, but it does mean they can use it in ways that support the platform’s functionality. This includes resizing, formatting for different devices, embedding posts on other sites, and sharing content within the Meta ecosystem.
Instagram can also sub-license or transfer its rights to third parties, though typically only in ways that align with its service.
You can end this license by deleting your post or account, but copies may still exist in backups or in content shared by other users.
How Do I Prevent Someone From Infringing My Copyright?
If a third party publishes, reproduces, or communicates your original Instagram content without your permission, they could be infringing your copyright.
It doesn’t matter if they credit you as the author or modify the content by adding their own creative input—without your permission, it may still be a copyright infringement.
There are several ways to discourage third parties from using your content without permission:
1. Use The © Symbol
As mentioned earlier, copyright in Australia is automatic and applies as soon as you create an original work. You don’t need to register it or display the copyright symbol (©) for legal protection. However, adding the symbol acts as a deterrent by clearly signaling that your content is copyrighted.
2. Add A Watermark To Your Content And Post Low Resolution Content
Adding a watermark, logo, or brand name to your content helps indicate ownership and can also drive traffic back to your business.
If you are a photographer or visual artist, you may also consider posting low-resolution versions of your images. This makes it harder for others to reuse your content without your permission.
3. Include A Link To Your Website Or Contact Form On Your Instagram
Include a link to your website or a contact form on your Instagram profile. If users can easily reach out to request permission, they are more likely to ask before using your content.
What Do I Do If My Copyright Is Infringed Anyway?
If someone uses or copies your Instagram content without permission, there are several steps you can take to address the infringement.
Send A Message
Before taking formal action, consider reaching out to the person who has reposted your content. Often, users aren’t aware they are infringing copyright and may be willing to remove the content when notified. This is a quick, low-cost solution that can resolve many cases.
Take-Down Notices
If the infringing content is not removed voluntarily, you can report copyright infringement directly to Instagram through their notice-and-takedown process.
If Instagram determines that the content infringes copyright, it will be removed.
This involves filling out an online form with a URL link to the infringing content and a description of how it violates your copyright.
Take-Down Notices from Tokyo Even high-profile users are subject to copyright rules. Olympic gold medalist Elaine Thompson-Herah was briefly banned from Instagram after reposting TV clips of her races. The International Olympic Committee (IOC), which holds exclusive copyright over Olympic footage, issued a take-down request, leading to Instagram removing the videos. This case highlights how copyright owners — including large organisations — can enforce their rights through take-down requests. |
Getting Legal Advice
If the infringement continues or involves commercial misuse of your content, you may want to consult a lawyer about further action. This could include:
- Sending a cease and desist letter
- Requesting compensation for unauthorised use
- Taking legal action through the courts
While trade mark infringement is a separate issue, if someone is using your registered trade mark (e.g., your logo or brand name) without permission, you may also have grounds for legal action under trade mark law.
How Do I Safely Repost Other Users’ Content?
If you want to repost someone else’s Instagram content, you should proceed carefully to ensure that you don’t risk infringing their copyright.
You should generally try to steer clear of posting other users’ content where you can. This could be photos, videos, Reels or even the music in the background of a video. If you haven’t created it yourself, try to avoid sharing it.
However, you can protect yourself using these few tips.
1. Ask For Permission Before Reposting
Before sharing or reposting someone else’s content, ask the original author for permission in writing. You can send them a DM, leave a comment or contact them privately through their website. They may elect to license it to you for a fee or simply ask you to credit them.
2. Check The Fair Dealing Exceptions
There are a number of exceptions to copyright infringement. These are known as the ‘fair dealing’ exceptions in Australia. If your Instagram post is used by a third party for any of these 5 purposes, the use will not be considered infringing:
- Research or study;
- Criticism or review;
- Parody or satire;
- Reporting news; and
- Provision of professional legal advice.
We’ve discussed some of the fair dealing exceptions in more detail here.
Need Help?
The key takeaway here is to be wary of copyright ownership when you’re using Instagram. If you’ve uploaded something, you own the intellectual property rights to that content and it can’t be shared or reposted without your permission.
If you would like help protecting your intellectual property, you can contact us here. We can help you register your trade mark, or ensure your work is protected under the agreements you may be entering. You can also reach out to us at team@sprintlaw.com.au or contact us on 1800 730 617 for a free, no obligation chat.
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