Instagram Copyright Infringement

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Instagram Copyright Infringement

Instagram has become one of the most popular social media websites on the internet.  Instagram copyright infringement occurs when someone uses an original work of authorship without the owner’s permission.  In a world where most people can instantaneously share anything on social media, it is very easy to commit copyright infringement.

Fortunately, every major social media platform has safeguards in place to prevent IP violations. Cases of Instagram copyright infringement, for example, can be dealt with directly through the website. In some instances, though, alleged violations cause significant damage and must be handled more thoroughly. Regardless of whether you’re defending your copyright or are accused of a violation, we can assist.

Copyright Infringement on Instagram

When you develop an original creative work, copyright protection grants you the exclusive right to choose how and if your creation can be used by others. In America, this right is provided by the federal government in order to incentivize the furtherance of human knowledge and entertainment.

Not everything posted on Instagram is protected by copyright law. This form of intellectual property is typically covered under federal statutes for the life of the creator plus an additional 70 years. If you create an image, text or video it is likely protected by copyright law as soon as it is published.

Once your creative work is fixed in a tangible medium of expression, it’s considered copyrighted under U.S. law. This means that any photograph, video, song, poem or other creative work you produce most likely is protected before you ever post it to Instagram.

Many creators go the extra mile by applying for copyright registration with the U.S. Copyright Office. There are numerous benefits of going this route:

  • Presumption of ownership: Registering a copyright within five years of the work’s publication establishes a presumption of ownership if legal issues arise.
  • Increased court damages: Copyright owners who go through the registration process can receive attorney’s fees and statutory damages in court. In many cases, these damages are many times larger than the amount of damages that can be proven.
  • Public notice: A copyright registration puts the public on notice that you’re willing to defend your copyright rights.
  • Protection from infringing importation: Registered copyrights are eligible to receive protection from S. Customs and Border Patrol. This can prevent infringing works from being imported.

While copyright registration is required to secure attorney’s fees and statutory damages, failure to register doesn’t prevent you from being awarded certain types of compensation. Courts may still grant actual damages if you’re the victim of Instagram copyright infringement.

Proving actual damages can be difficult, though, so applying for registration is your best option for protection. Even without going this route, you may still be entitled to any profits secured by a third party through the use of your copyrighted work.

How to Avoid Copyright Infringement on Instagram

Committing copyright infringement on Instagram can get your account suspended and potentially result in financial loss. Copyright owners take their rights very seriously, so it’s important to be mindful of possible violations. Here are a few tips on how to avoid copyright infringement on Instagram:

  • Only post content that you’ve created yourself or that you have properly licensed.
  • Ask permission from content creators before posting their works.
  • Share directly from the creator’s Instagram rather than copying and reposting.
  • Ensure use falls within the Fair Use Doctrine.
    • If your use is commercial, it’s likely not fair use.
    • Highly factual works (e.g. databases, maps) may fall under fair use.
    • Using as little of a copyrighted work as necessary is more likely to be fair use.
    • Could using a work impede the owner’s ability to sell? If so, fair use might not apply.
    • Commentary and parody typically fall under fair use.

It can be difficult to determine whether fair use applies, but these factors are important considerations to help you decide. If a creative work is yours, you’ve asked permission, or you use Instagram’s own features to share a post, you’ll most likely be in the clear.

It’s also important to realize that violations can occur even if that was not your intention. None of the following are legitimate ways to avoid copyright infringement on Instagram:

  • Crediting the copyright owner for their work.
  • Having no intent of profiting from use.
  • Modifying a creative work before posting it.
  • Only posting copyrighted material you’ve purchased.
  • Recording copyrighted content on your own (concerts, movies, etc.).
  • Only posting content that others have already shared.

These are some of the most common excuses people use when justifying copyright infringement on Instagram. In reality, none of these provide legitimate rationale for using a creator’s content without their permission. Instagram will likely still remove your post, and you could face injunctions, fines and other legal consequences.

Is My Copyright Being Infringed on Instagram?

Before reporting Instagram copyright infringement or sending a copyright cease and desist letter, it’s important to understand whether infringement has actually taken place. Having allegedly infringing material removed from the site starts a series of events that can backfire if handled incorrectly and can end up becoming a costly endeavor if no violation has actually taken place.

Here are some of the most common instances of someone wrongfully thinking Instagram copyright infringement has occurred:

  • Appearing in a photo or video on Instagram doesn’t automatically mean you have rights over the content.
  • Taking a photo of something you don’t have rights over doesn’t prevent others from taking similar photos.
  • Certain creative works may not be yours even if you produce them yourself. This is often the case if the work is created as part of your employment.
  • Certain uses of copyrighted material are protected under fair use guidelines. This could include commentary, satire, news reporting, education and more.

Even with these exceptions, you’ll still have rights over most content that you create. Even if you take a photograph of the Grand Canyon, a third party cannot use your image and post it on their Instagram. Even with millions of such pictures in existence, your work is yours alone. The same holds true with artwork, text, songs and other creative works that you may find on the website.

You could also hold rights over images that you didn’t create yourself. If you have an art gallery that features your own artwork, for instance, a person could be infringing upon your rights if they snapped a photo of a painting and then published it. This is considered a reproduction of a copyrighted work. This is also the case if someone uploads a video that features a musical score you created.

Even though you didn’t take the photo or record the video in the aforementioned examples, you have rights over the content featured in those reproductions. You should take action against any Instagram upload that features your copyrighted work.  In such instances a typical starting point is a copyright cease and desist letter.

Trademark vs Copyright Infringement on Instagram

While copyright and trademark infringement on Instagram may seem similar, they are two different violations that require different responses. Even if you created an artistic logo for your company, if consumers are being confused as to the source of services the infringement may fall more under trademark law.  Trademarks protect brands, slogans, designs, words and symbols that distinguish your company and its products or services from others.

This means that, while the Starbucks logo may look like a work of art, if the logo is used without authorization Starbucks may be much more concerned about trademark infringement rather than copyright infringement.  It’s important to note that the social platform will typically not involve itself or remove content where an in-depth analysis would be necessary.

If you believe that your trademark has been violated – or that counterfeit goods are being offered – please see our Instagram trademark infringement page.

Report Copyright Infringement on Instagram

As any social media platform’s userbase grows, instances of copyright infringement grow with it. Instagram has grown to over 1 billion users. Fortunately, the website’s focus on preventing intellectual property violations has kept pace with the huge expanse in users. This is why there are multiple ways to report copyright infringement on Instagram.

The simplest way to do this is by using Instagram’s Copyright Report Form. On this page, you’ll need to click “I found content which I believe infringes my copyright” followed by “Continue with my copyright report.” You’ll then be asked for the following information:

  • Your name and relationship to the copyright owner.
  • Name of the copyright owner (your name or the organization you’re representing).
  • Contact information (mailing address, phone number and email address).
  • Link(s) to content you’re reporting.
  • Link(s) to your original copyrighted work.
  • Electronic signature on declaration statement.

Because mistakes made when reporting infringements can lead to legal liability, we highly recommend that you only have a copyright attorney report violations for you.  Reporting copyright infringement on Instagram via their Copyright Report Form can have the violating material removed, but it may not provide the full legal protection you’re looking for. The user could upload the content repeatedly, and even if you submit numerous reports, the most Instagram will do is suspend the account. Having an attorney send a copyright cease and desist letter will usually permanently end an infringement issue.

Instagram’s page for DMCA notices asks the same questions that you’ll find on its Copyright Report Form. Once your content is removed under DMCA procedures, though, the infringing party can submit a counter-notification through Instagram. This begins a two-week countdown in which you can alert Instagram that you’re seeking a court order related to the violation. If you fail to do so, the site may restore the offending post.

Copyright Cease and Desist Letter

In the event of an Instagram copyright infringement, we typically suggest a copyright cease and desist letter.   A cease and desist letter is the first formal legal step in protecting your rights. It provides all the information necessary to remove the infringer’s ability to claim ignorance. It also creates a document trail that can later be used in court.  And since less than 3 percent of legal disputes ever end up in court – partially due to the effectiveness of cease and desist letters – this is often the final step necessary.

Responding to Instagram Copyright Removals

If you post content that gets removed from Instagram due to copyright infringement, the social platform will send you a notification informing you of their decision. You have a few different options at this point. If the content you posted wasn’t your own and doesn’t likely fall under fair use, you should not dispute the claim.

In instances where you feel content was wrongfully removed, you should have a copyright lawyer respond on your behalf. Instagram will include contact information for this person or organization when they alert you that the content has been removed.

Unfortunately, not all copyright reports on Instagram are done in good faith. Someone could claim copyright over content in order to hinder competition, silence negative reporting or a variety of other dishonest motivations.  If it turns out they acted in bad faith, they could face monetary damages in copyright litigation.

Contact Us

If you have an Instagram copyright infringement issues, please contact us.

 

 

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