1. If your post is original and creative content, it is likely protected by copyright law automatically.
From the moment an author, artist or photographer expresses something unique in a physical, auditory or visual way, they obtain an intellectual property right in their work. In the United Kingdom and elsewhere in Europe, there is no registration or application process needed to obtain copyright: the protection arises automatically in original works fixed in a tangible medium of expression. Likewise, it is not necessary to label work with the © copyright symbol, although this is good practice.
In the United States, registration with the Copyright Office is a pre-requisite if you wish to bring a lawsuit for infringement.
2. Uploading your content is not a waiver of copyright.
Copyright arises automatically and vests in the creator of the content. In the case of a photograph, the photographer is the holder of the copyright, and is thus often referred to as the “rights holder”. For more on the rights that a model or photograph’s subject may have, see below at 6. What about the person depicted?
Creators can give these rights to another person or entity – for example, a photographer may assign her copyright to the magazine in which her images are to be published. However, unless copyright is explicitly waived or assigned, it remains with the rights holder. Importantly, uploading content to Instagram does not forfeit copyright. By uploading content to the platform, the rights holder grants Instagram a licence over the content. However, a licence is simply a limited permission to use the content in certain ways.
3. If someone has simply copied your idea, it’s not an infringement.
Every photograph or artwork starts out as an idea, and the journey from concept to final product often involves a lot of hard work and inspiration. But despite the amount of time and thought that has gone into the piece, it is important to remember an “idea” in and of itself is not protectable under copyright. This is because ideas and concepts must remain available for anyone to use and develop in their own way: to do otherwise would unfairly stifle expression and innovation. That said, once an original idea is “put down on paper” or made into something tangible, copyright will arise to protect the specific way in which the idea is actually expressed.
4. When is asking for permission not required?
In certain specific scenarios, it is possible to copy or use the rights holder’s work without having to seek permission. In the United Kingdom, the legal doctrine of “fair dealing” is an exception to copyright law. Under this doctrine, people can reproduce works for non-commercial research or study, criticism, educational purposes in schools, review, and — unless it is a photograph — the reporting of current events. Another popular exception that falls under this doctrine is using the content for parody or satire. Accordingly, if the would-be infringer is able to demonstrate a defence of fair dealing, a copyright infringement will not be deemed to have occurred.
5. Crediting does not excuse infringement.
In school, we were taught that copying excerpts of another’s work without properly crediting them was plagiarism. But plagiarism is distinct from copyright infringement. Plagiarism is essentially an important academic norm which aims to provide attribution for intellectual thoughts. The legal doctrine of copyright, on the other hand, is a property right which aims to ensure creators receive payment for their creative efforts.
In economic terms, copyright protection incentivises an artist’s investment into their work, by offering a means by which to prohibit others from using their work without permission. Crediting a content creator with a hashtag or @-ing them in a caption, although typically a welcome gesture, does not in and of itself excuse copyright infringement.
6. What about the person depicted?
When a photograph features an individual, it may be tempting to assume that the subject of the photograph has an inherent right to control how that image is used or published. This however is not always the case. By way of example, several fashion models have shared photographs taken of them to their own social media accounts, only to be sued for copyright infringement by the photographer. It is important to remember that the legal position surrounding how images of individuals are to be protected or commercialised is complex, and often involves a variety of intellectual property, privacy, and consumer protection laws.
7. Practical options for resolving an infringement.
Where an alleged copyright infringement has occurred, there are several ways in which the rights holder can try to remedy the situation, including:
- Contacting the copycat, informally. This may involve sending a message asking them to remove the content in question, seeking some form of attribution, or negotiating payment. Where a content creator normally charges for the use of their work by brands and companies, they may be tempted to issue a retroactive invoice. However, the requirement to pay an invoice must usually be set out first in a contract or other agreement. It may be difficult to demand payment after a copyright infringement has occurred, and the infringer may instead simply delete the content – or ignore the request altogether. Ultimately, the informal settlement often largely depends on the infringer’s willingness to engage in the process.
- Using the platform’s takedown procedures. Under Instagram’s T&Cs, account holders agree to not violate someone else’s rights, including their intellectual property rights. Accordingly, Instagram does investigate allegations of intellectual property infringement and, if proven, may delete the offending content. Before submitting the claim, the rights holder should be aware that Instagram may share their contact details with the copycat. Secondly, because social media giants are regularly inundated with claims, action often comes slowly, and the outcome may not be satisfactory.
- ‘Naming and shaming’, although this should be treated with caution. Some creators may decide to ‘name and shame’ the copycat on social media. Of course, from a practical perspective, accusing someone of violating copyright carries with it its own risks. For one, it may potentially damage or prevent future working relationships the creator has with the copycat, or indeed with other brands. On the other hand, naming and shaming may be desirable as a means to hold others accountable for copying content without permission. This is especially relevant in an age where content creators and influencers are becoming more vocal about receiving proper remuneration for their work.
8. Getting the balance right is an on-going process.
Once content is posted online, it can be difficult to maintain total control over where it is eventually used, shared, or modified. But in many ways, the perpetual cycle of re-gramming and screenshotting is now an integral aspect of publicity and recognition. It is admittedly a tricky balance to get right in practical terms, and one which is the subject of much debate in the legal community, too. How can we protect copyright for creators on the one hand, whilst encouraging innovation in the digital economy on the other?
Regardless of your digital media strategy, there are pros and cons which you should weigh up and consider, before deciding any course of action. To that point, intellectual property lawyers can do far more than issue court paperwork! At DAC Beachcroft, our technology and media teams offers business advisory services and can provide practical, strategic advice on how to both commercialise – and protect – your content.
The author wishes to thank Andrew Allan-Jones (Partner, Intellectual Property) for his input on this article.
Should you have any questions on digital media strategies, please contact Tim Ryan (Partner) or Kelsey Farish (Solicitor).
