There’s a good chance that one of your first interactions with a business will be via social media, and most likely Instagram will be one of those platforms. Instagram gives you access to reach more than 800 million users; anyone from an old college friend, to an Instagram influencer, or even Fortune 500 CEOs. It’s a modern-day billboard for your business that allows you to pull your audience in with eye-catching imagery, and establish meaningful connections. With that need for alluring imagery, you will inevitably come across images that you want to share, or “regram.” After all, it’s suggested that online business owners post 1-3 times a day, every day . . . that’s nearly 1,110 images annually! Who has the time, skill, or even the desire to create that many images? So, it’s no wonder that most people find the idea of regramming a photo tempting. However, Instagram itself doesn’t support sharing content, placing the burden on the user to abide by all copyright laws. So how can you share content on Instagram legally?
Sharing Images, Instagram Copyrights And Other Rules
You’ve just gotten a cappuccino from your favorite coffee shop, and all of the sudden you see the perfect background for your next Instagram post . . . so you snap a photo. Congratulations, you have now created an original work of authorship in a fixed form shielded by common law copyright protection! Ok, that’s a little dramatic, but only slightly. In the U.S., the minute you press down on the shutter of your camera and produce an image, you now automatically own the common law rights to that image. However, that means every single photo that you see on Instagram is someone’s common-law copyrighted image. It’s important to view your feed from this perspective, because regramming someone else’s image will inherently involve copyright law. Simply put, regramming an image without consent constitutes copyright infringement in the Unites States, and although the act of reposting sounds harmless enough, courts have awarded judgments against people or companies who felt entitled to use an image without permission. So how do you repost legally?
How To Repost Legally
You have to get consent. It’s that simple. The most common misconception I have seen concerning reposting is that tagging, or crediting the original source is “good enough,” or that cropping the photo and slapping a filter on it transforms the image into a “new creation” under the doctrine of Fair Use. No dice. Courts are making it clear: Generally speaking, no matter how much you edit the photo, your use of someone else’s image is not Fair Use. Additionally, merely linking to the original source of the photo in the caption won’t keep you out of copyright trouble. If you want to regram legally, obtaining one of the following two types of consent is mandatory: Implied consent: Let’s start with a common example that I’ve seen in my own inbox. A stock photographer sends out a desk mockup to their email list, and they say “feel free to use this free image, and customize it for your product! If you use the hashtag #____, you may even see your photo on our own feed.” Although this stock photographer has not had a one-on-one conversation with any recipient, if one of the recipients uses that hashtag, the recipient has expressed his or her implied consent for the stock photographer to use that image on their feed. Practical tip: If you have created something that you want to be shared on social media, include your @instagramhandle (for example, @paige.hulse) in the image itself, and say so in your caption. Express consent: Another example that happens often: What if one of your favorite Instagram influencers posts a beautiful hand-lettered graphic that you think would be just perfect on your own feed? If you want to share the image, you have to be able to answer “yes” to one of these two options:
In their caption, have they said anything along the lines of “feel free to share this image, just make sure you credit my account”? Have you reached out to them and asked for permission, and they responded with a “yes”?
Express consent occurs when the original owner of that image tells you specifically that you may use the image. To be clear, just going through the steps of asking for permission won’t cut it- you need actual consent, in writing if possible. Express consent doesn’t need to be hard to obtain: it can be as easy as commenting on the photo itself or sending a direct message asking for permission. When they explicitly tell you that you may use the image, then you are safe to regram it. However, make sure that you credit that person in the caption if they ask you to!
Don’t Repost Apps Take Care Of All That?
Nope. It doesn’t matter if you use one of those apps that leaves a big watermark of the original owner’s Instagram handle, either. Using a repost app without the original owner’s consent does nothing more than put them on notice that you’ve used their image. And although you’d like to think every Instagrammer would be grateful for the “free advertising,” this isn’t always the case.
If you use any sort of reposting app, you still must have the original owner’s express consent before you post the image. Of course, if you do have that person’s consent, using an app that leaves a watermark on the image is the best way to credit that source.
Here is a more tangible way to think of it: Jim’s Restaurant really likes Sam’s Restaurant’s photo of a burger on Instagram. Jim’s Restaurant also sells burgers, and they look the same. What’s the harm in Jim using that same photo on a billboard, saying “stop here, we have the best burgers! (Photo by Sam’s Restaurant)” with Jim’s logo plastered all over the billboard?
People will see the great photo and realize a burger sounds great, and if they look close enough, they technically could see that the photo was taken in Sam’s restaurant. If they choose to go to Jim’s restaurant instead of Sam’s, is that really Jim’s fault?
Common sense tells all of us that’s not right. Well, regramming on Instagram is essentially the modern version of the same scenario. When you are running an online business and marketing on Instagram, using someone else’s content is tantamount to using their online marketing.
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But What If I Found the Perfect Photo But Don’t Know Where It’s From?
You found the perfect photo online (most likely on Pinterest), and you’ve given a “good faith effort” in searching for the original owner, but you just can’t figure out who the photographer was. Since you tried but aren’t sure who to credit, you can just use the image, right? Unfortunately not. Copyright laws are every bit as much at play as if you found the photo on a favorite Instagram account. Even if you can’t find the photographer, someone owns the common law copyright to it, so your use of the image is still governed by copyright laws. If you can’t find the original source, do an advanced Google image search. Find the section that says “usage rights”, and scroll down until you find “free to use and share.” These are the images you can pin. Any images old enough to no longer be under copyright protection are fine. Any image noted as “public domain” is also free for you to use.
What to Do If Someone Reposts Photos on Instagram From Your Account?
In the same way that you will see other people’s images that you would like to regram, your own photos will likely be reposted without your permission at some stage. If you are uncomfortable with that person’s use of your image, you have every right to ask them to take it down. To do so, follow these steps:
Reach out to the person. The vast majority of the time, the regram was innocent, and that person did not realize they were using your intellectual property. An accusatory tone likely won’t get you far — be professional and polite, and the situation will likely resolve itself. If they do not respond or they choose to ignore your request, the next step is to send a formal cease-and-desist letter. You may send one, or hire a lawyer to send one on your behalf. If a cease-and-desist letter does not stop their action, Instagram directs you to use their online form. From that point on, Instagram will review the claim, and may remove the reported content. All actions from this point on will be governed by DMCA laws.
In Summary: Create or Credit
The best way to market your online business on Instagram without opening yourself up to potential liability is to stick to this simple rule: create or credit (with consent). The only way to entirely avoid copyright liability is to use your own image. However, if you want to regram another user’s image, make sure you obtain either express or implied consent from the original owner. Merely mentioning them in the caption or in a hashtag will not be sufficient. By taking time to learn how to use Instagram legally, not only have you likely made the first step in building a relationship with that fellow Instagram user, but by protecting your business from possible liability you will now be able to confidentially use the platform to market your business. In today’s online world, Instagram is arguably one of the most highly effective business tools available. Yet, when sharing images, Instagram has a few rules that you should take into consideration. There’s a good chance that one of your first interactions with a business will be via social media, and most likely Instagram will be one of those platforms. Instagram gives you access to reach more than 800 million users; anyone from an old college friend, to an Instagram influencer, or even Fortune 500 CEOs.
