Who is the Copyright Owner When A Photo is Uploaded to Instagram

Iphone with social media app icons

In a recent case law news, a New York court ruled in favor of a large media company accused of copyright infringement after the company embedded a users Instagram picture in a article on their website after failing to get consent. It is a common thought that when you upload to a social media platform you are giving up a certain level of privacy and information security. But where is the line drawn? Many don’t know what extent they’re coverage truly reaches.

This was not a issue about who the owner of the photo was but rather the use rights for said photo. In this case even with it being clear who the content originally belonged too, the photographer ended up losing the case because of the fine print. The media company noted that since the content was public on Instagram then by default the content was available to the public as a sub license. A key aspect of this case was that the photographers account was not set to private, the Instagram user agreement states that sub licenses are not available for private accounts. As a result the courts sided with the media company case was dismissed.

“Strictly speaking, when users upload an image to Instagram, they do not forfeit their copyright. Instead, Instagram’s Terms of Use operate so as to give the social media platform a non-exclusive, fully paid and royalty-free transferable, sub-licence to use the content. ” – Extract from Lexology

This scenario raises many red flags because corporations can not operate if they are on private. To what extent does this extend from a photograph infringement case into something much larger. Although this case cleared up the third party uses of content posted to Instagram, the overarching issue was not made any clearer.

In the end there are ways to prepare, point being do not assume that someone else’s “terms of use” is enough to protect you. It is important to set up your own safeguards and are aware about where you are putting out information and how you intend to use that content.

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