Social media sites like Facebook, Instagram, TikTok, or Pinterest present a variety of complicated (and sometimes frustrating) copyright issues for users. Social media content often involves copyrighted music, videos, artwork, and more. Many users repost or copy someone else’s Instagram content without thinking about the possible legal problems that can arise. Reposting someone else’s copyrighted work on Instagram can open the door to costly copyright infringement lawsuits – even if you give credit to the copyright owner.
Copyright owners have the exclusive right to reproduce, distribute, perform, and publicly display their copyrighted work. Copyrighted work can include music, photos, videos, drawings, graphics, etc. On Instagram, for example, original content belongs to the users, not Instagram. That means that the individual users own the copyright in their original content, and other users cannot freely use it without serious copyright implications.
Copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, or publicly displayed without the permission of the copyright owner. Unfortunately for Instagram users, this means that copyright infringement can easily happen by reposting another user’s image or video on your own account.
To avoid potential copyright infringement, many of these sites, like Instagram, don’t allow users to repost someone else’s content directly on the app. While there are many other third-party apps that make reposting on Instagram easy — it doesn’t mean it’s legal.
Copyright infringement can occur even when you:
- Give credit to the copyright owner
- Include a disclaimer that you don’t own the copyright and/or don’t intend to infringe copyright
- Photoshop the work, add a filter, or edit it in some way
- Use the content for non-commercial purposes
Am I Infringing On Someone’s Copyright?
Copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, or publicly displayed without the permission of the copyright owner.
Reposting someone else’s copyrighted work on Social Media can open the door to costly copyright infringement lawsuits – even if you give credit to the copyright owner.
Technically speaking, reposting another user’s content is copyright infringement. However, there are a few ways to protect yourself. Or, at least minimize the chances of a copyright infringement suit.
Tip #1: Ask for permission
Asking the user/copyright owner for permission to repost their content is the easiest way to decrease the chances of a copyright lawsuit. You can easily ask the user via direct message or through the comments for permission to repost their content. Getting express permission from the user can add a layer of protection against a future suit.
Tip #2: Give Credit to the Copyright Owner
After getting permission from the user, it’s important to give that user proper credit in your repost. Simply tagging them in the photo/video might not be enough. Instead, it’s better to tag them in the photo/video AND give them credit in the caption (i.e. by explicitly tagging their account in the caption to provide a link back to their page).
One of the gray areas is reposting another user’s content with credit, but without permission. The best practice is to get permission from the owner AND give them credit in the caption. But at the very least, it’s important to give them explicit credit in your caption by tagging their account.
Tip #3: Use a Repost App (with permission)
There are many third-party apps that allow users to easily repost another user’s content. While these apps make it easy to infringe another user’s copyrighted work, they can also add another layer of protection if used correctly.
Repost apps typically include the watermark of the original post creator’s username in the image. So, after getting permission from the copyright owner, using a repost app can make clear that the content is “programmed” while providing another reference to the copyright owner’s page.
As a rule of thumb, a user shouldn’t repost using a third-party app unless they have permission from the copyright owner to repost their images. The user should also still give credit in their caption, in addition to the watermarked credit in the image itself.
In summary, it’s best to get permission from the copyright owner, tag the owner/user in the photo, afford credit by tagging the user in the caption, and use a repost app to include the watermark in the image itself.
Another protection against copyright infringement is the doctrine of fair use. Fair use is an affirmative defense that allows people to use a copyrighted work for purposes such as news reporting, criticism, comment, teaching, etc. Generally, such uses are not an infringement of copyright.
Some social media users have tried to rely on a fair use defense against copyright infringement, arguing that their post is a comment or criticism of the original copyrighted material. But these are highly fact-intensive inquiries and often result in split decisions from courts. It’s hard to predict whether a court will find that a user’s repost qualifies as fair use, and shouldn’t be relied on as a slam dunk defense against copyright infringement.
Whether reposted content on Instagram constitutes copyright infringement can be an ambiguous area of the law. Cases involving reposted content and copyright infringement involve a degree of uncertainty because it is a new and evolving legal area. Since the risk of getting hit with a copyright infringement lawsuit is undeniably high, it’s important mitigate the risk by taking proper steps to protect your repost against potential copyright infringement claims. We are your Orange County trademark and business attorneys here to help.