Share with care and consent

You create and post an image on your Instagram account. Another business Instagram account then posts the image, with a tag and credit to your account. Seems reasonable enough right? But here’s the rub. They use the image to promote their own business. And more importantly, they didn’t ask to use the image. Feels less like posting and more like poaching now doesn't it?

With a 1 billion users every month. 500 million users of stories every day. No wonder we all find ourselves scrolling down an Instagram rabbit hole on the regular. It’s clear that Instagram isn’t going anywhere anytime soon. And neither is the widely accepted social media etiquette and practice of reposting, tagging and crediting on the platform. But as the number of users grows, so does the potential copyright issues. There’s a few more legal IP’s and Q’s involved to avoid copyright infringement. To share with care online, consider the 5C’s: copyright, consent, conditions, credit and create.

What is copyright?

It’s a word that gets thrown around a lot, but what does copyright actually mean?

Copyright helps creators protect their work, control how it is used and be rewarded for their creative efforts. In Australia, copyright protection is applied freely and automatically when a new original work is created. There’s no way or need to apply for formal copyright protection.

You’ve taken a happy snap of your very photogenic dog. Voila! Copyright protection exists from the moment you captured the image. As the copyright owner you control who and how the image can be used.

The general rule of thumb is that the creator of any original work is the copyright owner. But like every rule, there are exceptions and the creator of the work isn’t always the copyright owner. Copyright owners can either assign or licence their rights to others and also set the terms for how their work can be used.

Next time you share an image on Instagram, think on this. Unless you’ve created it, any image you find online has been created by someone. And the copyright belongs to someone. Thanks to the wonders of the internet, images might be readily accessible but it doesn’t mean that they’re free to use.

Yes means yes. Get consent.

Legally, to post and share images other than your own — you will need to obtain from the copyright owner. Posting or sharing someone else’s image without consent will likely be considered a five-finger digital discount, that is infringement, under copyright law. Not to mention it’s just rude not to ask. Consent may be in the form of express or implied consent:

Express consent — where the copyright owner has provided clear permission to the use of their image. For example, it could be a statement on a website which states that an image is available for use and outlines any specific T&C’s in relation to that use (i.e. for personal or commercial purposes etc). Alternatively, in response to your email, DM or other written request, the copyright owner has given you a clear green light to use their image.

Tip: When asking someone for consent to use their image, be specific about how you intend to use it. E.g. for marketing purposes, a personal blog etc.

Implied consent — where permission might not be clearly spelled out but is implied from the surrounding circumstances. For example, a caption on an Instagram post might say “please tag and share” or “use the hashtag #X to be featured” which suggests it's ok to the share the image.

Tip: Implied consent doesn’t necessarily mean an image may be used for commercial purposes. If in doubt, it’s best to go down the express consent route.

Simply posting or reposting with a tag and credit isn’t a get-out-of-IP-jail-free card. Same goes for when you repost using a reposting type app. These apps might give credit to account where the post originated, but doesn’t actually get around the issue of obtaining for consent to share the image in the first place. So remember, just ask — or you might find you’ll be asked to remove the image.

Check the conditions of use

Instagram’s own Terms of Use doesn’t allow for posting of content that violates someone else’s intellectual property rights. By using the platform, you’re agreeing to these terms. Sharing content without care and consent not only potentially infringes someone else’s copyright, you’ll be breaching Instagram’s T&Cs.

All images will come with some strings attached, which determine how they can be used. Generous creators can make their work available for public use under a Creative Commons (CC) licence. But even then, there are specific conditions attached to different CC licences. If you’re using stock images from any online resources such as Unsplash, Pixabay, Getty Images or Stocksy United, make sure to read the T&C’s with any licences and understand how the images can be used.

Credit where credit is due

We’ve found ourselves being the IP po-po on several occasions where well-meaning Instagrammers have used a licensed image from and credited our account (example below). This is a double whammy no-no. Firstly, another super talented human created the image, which means we don’t own the copyright. Tagging our account meant the artist didn’t receive the rightful kudos they deserve for their work. Secondly, we purchased a licence, which means we paid the artist for the privilege of using their work. When someone simply reposts the image without purchasing their own licence, this is cutting the artist’s lunch.

So if you’re going to credit an image you’ve used, make sure you’re giving credit to the rightful copyright owner. And no Pinterest is not a legit credit or source.

Just because you can’t find or contact the copyright owner, doesn’t mean you're in the clear to freely use an image. Dig a little deeper. Advanced Google image or reverse image searching can help you identify the usage rights or original source for an image.

If you’re using a CC licensed image, regardless of the type of licence applied, you must always credit the creator of the image. Similarly, the T&Cs of stock image sites will outline how images are to be credited.

Create it yourself

If you really want to avoid potential copyright issues on Instagram - create and use your own images. And if you’re concerned about your own images being pinched, consider including a watermark on your images, embed a copyright notice and info in the image metadata, or specifying any do’s and don’ts with your images in captions, comments or your bio. Educate your online audience about how you want your work to be used and valued.

An added C: Copycats

How do you deal with someone using your image without your consent? To start with, you can always reach out to them directly and explain your concerns. The other party may not realise they’ve misused your IP and a polite DM can often help resolve the issue. If you need to step it up, Instagram, as well as other social media platforms, have an online form you can use to report copyright infringement. You may also need to consider sending a formal cease and desist letter. A legal rep can help advise you on an appropriate strategy and prepare the right letter, if needed, to deal with a copycat issue.

Instagram is a great business tool. Just don’t be a tool when using it. Mind your IP’s and Q’s when sharing images.