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 a free and automatic right. This means that you automatically and immediately own copyright over your creative works. You don’t need to do anything else. We’ve broken down the elements of copyright law here.

When you post an original photo or video to Instagram, you retain your copyright over the content. But the legal effect of uploading your content involves essentially granting a license to Instagram for them to host and use your content in certain ways. 

Instagram’s Non-Exclusive Rights

In Instagram’s Terms of Use, it states that:

“When you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our Service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content…”  

These rights are non-exclusive, meaning that your copyright ownership isn’t waived. This basically means that while you’re not giving up legal ownership of your content, you are providing Instagram with a broad number of rights and uses which apply globally. 

Under this policy, Instagram could technically sub-license or transfer its rights over your content to a third party, without your permission. It could also use the content for its own purposes, perform it publicly or use it to create derivative works, such as an arrangement or reproduction. 

You can choose to end this licence simply by deleting your content from your Instagram, either by deleting individual posts or your entire account. 

How Do I Prevent Someone From Infringing My Copyright? 

If a third party publishes, reproduces or communciates your original content from Instagram without your permission (or Instagram’s permission, according to its Terms of Use), they could be infringing your copyright. 

It doesn’t matter if they’ve credited you as the author or if they’ve modified the content or added their own creative input to the content. Without your permission, this could still be infringing your copyright. 

There a number of ways to dissuade third party users from infringing your content:

1. Use The © Symbol 

Like we’ve mentioned, copyright is an automatic legal right in Australia and it kicks in immediately once you’ve created something. You don’t need to register copyright and your legal rights will not be affected if you don’t display the copyright symbol ©, but it can be a good way of letting other users know that the material is protected by copyright. 

2. Add A Watermark To Your Content And Post Low Resolution Content

Adding your brand or logo to your content is another great way of putting others on notice that the work is copyrighted. It can also redirect the audience of an infringing post back to your business. 

If you are a photographer, you may also want to consider posting low resolution versions of your images. This can be an effective way of discouraging third-party reproductions. 

3. Include A Link To Your Website Or Contact Form On Your Instagram 

Make sure that there is a way for users to contact you which is visible and easy to find. If you are easy to contact, it will encourage users to get in touch first and ask for permission to use your content.

What Do I Do If My Copyright Is Infringed Anyway? 

If a third party uses or copies your Instagram content, there are a number of steps that you can take to address the infringement.

Send A Message 

It can be a fast, easy and cheap solution to try and contact the person who has reposted your content before trying other options. Often, a user may not be aware that they’ve shared infringing material and they will be willing to remove the content.

Take-Down Notices

You can report copyright infringement directly to Instagram and request that it is taken down under their notice-and-takedown procedure. This involves filling out an online form with a URL link to the infringing content and a description of how it is infringing your copyright. The reported content will then be removed if it is found to be infringing intellectual property rights. 

Take-Down Notices from Tokyo 

A gold medalist Olympic champion, Elaine Thompson-Herah, recently reposted video clips of TV coverage of her races and was barred from Instagram for two days for copyright infringement. 

The block was the result of a takedown request issued by the International Olympic Committee, who own the exclusive copyright over the TV clips. 

Getting Legal Advice

If the infringement continues, you may want to seek out further advice from a lawyer about sending a cease and desist letter, requesting compensation or pursuing the matter through the courts. 

Additionally, if someone has used and infringed your registered trade mark, you may be able to send a cease and desist letter or escalate the matter through the courts. A trade mark is a word, slogan, symbol or design which represents and identifies your brand or logo. 

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

About Sprintlaw

Sprintlaw is a new type of law firm that operates completely online and on a fixed-fee basis. We’re on a mission to make quality legal services faster, simpler and more affordable for small business owners and entrepreneurs.

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