Is Sharing Caring? Copyright & Instagram Regram

Woman holding phoneMatthew Henry

Although the social networking service Instagram is worryingly time absorbent, many users would spend little or indeed no time reading the Terms of Use.

Instagram has more than arrived with explosive growth to over 300 million users, corporate ownership by social media Grand Daddy, Facebook and Instagram’s redefinition of the fashion industry.  Given that marketing mantra “Content is King” is so widespread, it is worthwhile considering some of the copyright issues in using Instagram posts and importantly the extent to which images, once posted, can be used in the form of a Regram.

The Terms of Use can be viewed here TERMS OF USE

There is a common misconception that Instagram takes ownership of any image posted and that a user essentially surrenders all rights.  Instead the Terms of Use clearly provide that Instagram does not claim ownership of any content that users post.  Instead, users grant Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the posted content, subject to Instagram’s privacy policy.

The Terms of Use also provide that users agree that Instagram may place such advertising and promotions on the service, about, or in conjunction with your content.

Relevantly, users warrant that:

They own posted content or that they otherwise have the right to grant the rights and licenses;

The posting and use of content on or through the service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; and

They agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service.

Instagram provides a mechanism to report claims of intellectual property infringement see INSTAGRAM INTELLECTUAL PROPERTY

The Terms of Use also provide that Instagram may disable a user’s account in the event of repeated infringement of other people’s intellectual property rights.

Instagram’s Terms of Use in connection with intellectual property are unremarkable.  The more interesting issues are in relation to use of posted images that a user sees on Instagram.

Sharing content is at the heart of social media.  Facebook friends share, Twitter tweeters retweet and Pinterest people pin.  However, Instagram provides no function to share or reproduce the posts of others.

In a culture of sharing it is inevitable that posts will be shared and with Instagram this is through an Instagram Regram.  A Regram is when an Instagram user posts a photo from someone else’s account to their own.  Users benefit from reposting this fresh content to their network.

Culturally Regramming is viewed as permissible, indeed it is considered complimentary provided that the correct etiquette is followed.  In particular, a Regram should credit the original poster by either watermarking their Instagram handle on the image or mentioning it in the new caption, along with the original text.

Regramming is not a native feature of Instagram and is achieved using third party applications which generally include credit to the original poster.  As such, the Instagram Terms of Use offer little guidance on the legality of an Instagram Regram, except to confirm that the original poster retains copyright in the original image. Although the Terms of Use grant Instagram a license to use the posted image, they do not grant those rights to another user who views the image.

Even though an Instagram Regram may be a compliment and may credit the original poster, unless permission is given by the original poster, a Regram is copyright infringement.

Although you might carefully follow online etiquette any Regram may be the subject of challenge and complaint.  The easiest way to avoid potential issues is to simply seek permission to Regram from the original poster.

Further reading
Broadly Speaking - Breadth of Goods and Services Specifications in AU and NZ Trade Marks
Read more
Microorganism Deposits - Extension of Time to File Deposit Refused
Read more