So, some of you may be aware of the legal battle that went on between a popular Photographer and a publication, where they asked permission to use her image on their website for a fee ($50) and she declined, they went ahead anyways and used her image on their website without her permission by embedding a link to her Instagram post. She took them to court, but the publication ended up winning the initial court trial.
WHY??? Some of you may ask, well it turns out that there are some Terms and Conditions that Instagram have put in place that many Photographers are unaware of.
Is my image still mine if I post it on Instagram?
Technically speaking, yes, you still own the Copyright to an image that you have posted on Instagram however, sneakily, the Social Media platform has a few tricks up their sleeves when it comes to what they can use someones content for. Instagrams Terms of Use policy states that when you upload content you give them non-exclusive fully paid and royalty free transferable, sublicense to use your content. In simpler terms, this means that Instagram can license images from one site to another, including other instagram users who may be following your account (this is when they re-post your image) and third party sublicensees can also use your images, all of this can be done without it being an infringment of your Copyright
.
So what hope is there for me?
Now, despite how it sounds, it's not all doom and gloom! There is principle that Instagram has put in place called 'Fair Dealing' which may protect Photographers if an image on their feed has been used without their permission. This principle sets out a number of exceptions concerning the use of Copyrighted content without securing the owners permission.
If it has been used for
-Research or Study
-Criticism or Review
-Parody or Satire
-Reporting News
-Professional legal Advice
If your images have been used for any of these reasons without your permission then you can take legal action.
Is that all?
Now unfortunately, there are just some plain, out right, dubious individuals/Companies, that will still source images from instagram without seeking permission from the platform or the individual (this is done if they take someones content from their feed, do not embed their profile or make it clear that it was taken from instagram, and manipulate the image by cropping, writing text etc) In cases such as this, it is an infringment of your copyright and it is well within your right to take legal action and claim compensation.
An example of embedding. Source: Mashables
So how do I protect my images on Instagram?
There are a few ways that you can protect your work from being sublicensed without your permission. The first thing you can do is:
- Dont post certain images online: If there is a killer image from an amazing project that you did that you would not want ending up somewhere else, the best thing is just not to post it. Either put it on your website (which you should all have!) your website is your private property, if someone takes an image without seeking consent then you can take action against them. I also recommend having a PDF portfolio with images from projects that you would only want Photo Editors, Curators or other important people to see.
- Put your account on private: Now personally, I dont recommend taking this action, especially if you are a working photographer who seeks commisions, assignments/ work from what you post on your feed. Some of you may not be aware, but many Photo Editors, Communications officers from organisations, Curators and other top industry people usually scout photographers by scrolling through their Instagaram. If your Instagram is on private, some of them may not want to 'waste their time' sending you a request and waiting for you to accept, (this means that you could have just potentionally chased away your next big assignment!) However, maybe you are not in this category, you may be a well established Photographer (or your doing it as a hobby) and getting paid work from your feed might not be your aim, then putting your account on private means that Instagram is not able to sublicense your images to third-party sublicensees, and people cannot re-post your content because your account is not publicly avaialble for all to see.
- Manipulate your image: Another common thing that many Photographers do is manipulate their image by cropping in to a certain part of it. This is a good way of still showing your work, but the whole image is not available to see. This means that if an organisation does still want to use your image, the whole of it has not been used (but if it is cropped its a nice way of chasing away sublicensees). You can also lower the resolution of your image, which is another way of chasing away sublicensees because they wouldnt want to use a low res (low quality) image because it could end up being pixelated on their site. The down side to this however, is that if your image is being seen on a dektop or any other device, the quality wont be as sharp and crisp as you would want it to be.
All in all, my biggest advice is just to be conscious, think twice about the projects you may choose to publicly post online. Your images are your Intellectual Property, it is something unique that was made by you, if it is to be used, you should at least be receiving some sort of payment from it.