Instagram has become one of the most widely used social networking applications today. Its interface is based entirely off of user-generated content by allowing its users to share photos, videos, and network with other members either publicly or privately on the application. As of June 2016, the mobile photo-sharing network has reached 500 million monthly active users, meaning that a whopping 20% of all Internet users use Instagram. Users post both their own content and share the content of others.
Instagram did not create a natively easy way to repost another user’s photo, known as a “regramming,” likely because their guidelines limit posting one’s own photos and videos. The guidelines even caution: “[r]emember to post authentic content, and don’t post anything you’ve copied or collected from the Internet that you don’t have the right to post.” However, regramming has become a social norm. Regramming is used to further many different objectives. Some individuals repost to share content that they think their followers would enjoy, while other individuals enjoy social media fame by reposting jokes and memes they create and collect from others. Even companies repost content to further their social media presence as a marketing tool to increase sales. Not only are these posts extremely easy to manually copy, screenshot, and repost, but the process has also been simplified by a plethora of applications intended to aid users in regramming other’s content.
With regramming becoming ever easier, there has been increasing uncertainty associated with liability. Since the practice of regramming has become a social networking norm, people seem to be under the impression that the practice is legal. However, a regram on Instagram could still be considered copyright infringement. It is incorrect to believe that by simply attributing credit to the content creator, a regrammer gains protection from claims of liability. Worse yet, some users are under the impression that since the content is available on a public platform, it is automatically free to use in an unrestricted matter. The reality is that without express permission to repost content from the copyright owner, the original user has the right to take the re-poster to court and seek monetary damages as well as injunctive relief.
Why would a re-poster be subject to liability? When someone takes a photo or creates another form of personalized content, and that creator is not subject to a work for hire agreement, in that they are not being compensated for creating the content for another individual or company, the general rule is that they are the owner of the copyright. Instagram has forms available to users to report potential copyright or trademark infringement claims.
There have recently been a number of lawsuits over posts on Instagram that could help shape the future of liability. Not long ago, Groupon was hit with a class action that claimed that Groupon used Instagram photos without permission from other users. The suit claims that the company reposts photos without permission in deal offers as a core part of their advertising strategy, in violation of the Publicity Act. In another case, the controversial artist Richard Prince was sued for copyright infringement, not for directly regramming others photos, but because his work involves knowingly reproducing Instagrams, without permission, and selling them for money. Prince calls these new portraits “screen saves” of Instagram posts, where the only modification to the images are blowing them up in size and adjusting the comments underneath the pictures.
However, it is interesting to note that the user grants wide licensing rights to Instagram whenever they post. Instagram has a non-exclusive, fully paid, royalty-free, transferable, sub-licensable, worldwide license, meaning that they basically have the right to use all posted photos for free, for any reason, all over the world. Instagram can also give those rights to a third party. If Instagram implements a regram button and updates its Terms of Service and guidelines regarding the use of that function, it is possible that regramming content will become part of the paradigm platform, similar to the sharing functions of Facebook, YouTube, and Google+, and the issues discussed here would be absolved.
Lauren Krakovyak is a J.D. candidate, 2018, at NYU School of Law.