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This article is written by Vasundhara Thakur, pursuing a Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations from LawSikho.com.

 

Introduction 

Every word seems pretty cool when you put a Hashtag (#) on it. Have you ever wondered what made those hashtags so popular that it has become a major source for connecting with people to build community across the social media platforms? Hashtags are quite popular on Instagram, it helps people to reach their target audience, brands and consumers. But what exactly is Instagram? Well, Instagram is a social networking app, famous for sharing photos and videos. It was founded in 2010 and after a decade, it has become popular among people of almost, every age group. It helps growing businesses, influence people, sharing contents either created originally or by others. 

This article provides a comprehensive study on various copyrightable works on Instagram posts, how one can avoid copyright infringement on such posts, who is the owner of such works and how to avoid copyright on different kinds of posts on Instagram. So, let’s begin our discussion and see how Instagram with over one billion active monthly users protects the copyright and how the users can avoid copyright infringement on their Instagram posts. 

Concept of copyright

Copyright is a kind of intellectual property which provides an exclusive right to the owner and creator of original creative work to do or to authorize others to do certain acts in relation to literary, dramatic, artistic, musical works, cinematograph film and sound recording. 

Copyright in a work becomes effective from the time of its creation. So, it does not require registration but it is advised to get registered for future references. 

It is worth noting that copyright law protects the expression of an idea and not the idea. Copyright comes into existence since the day of creation of creative work, even if it is not registered, it has been safeguarded and protected by the copyright laws.

  • There are certain classes of works that subsist copyright, these are:
  1. Original literary, dramatic, musical and artistic works including:

“Literary Work”- manuscripts, computer programmes, databases, books, articles, plays.

“Musical Work”- work consisting of music and graphical notation.

“Dramatic Work”- any piece of recitation, choreographic work, scenic arrangements or acting.

“Artistic Work” – painting, sculpture, photograph, architecture works.

  1. Cinematograph film: A work that includes visual recording accompanying sound recording. 
  2. Sound recording: Sound recording is a method by which sounds are produced.
  3. Visual Recording: It means the recording in any medium, any method including the storing of it by any electronic means, of moving images or of the representation thereof. 
    • Purpose of Copyright Law: The purpose of copyright law is to protect the creators against exploitation of their copyrighted work and to encourage them to create more creative works (like authors to write books, artists to paint, musicians to produce music) with the exclusive right to exploit their works for monetary gains.
  • Who owns the copyright in a work? 

The original creator of the work owns the copyright in a work. The painter of a painting or photographer of the photo. Although there are cases where a creator might not own the copyright, as in the case where a person is working for an organization then the organization becomes the owner of the copyright.

  • The Term of Copyright:

The term of copyright varies according to the nature of work.

In the case of literary, dramatic, musical or artistic work- the lifetime of author plus 60 years.

In other cases, the term is sixty years from the year of publication.

  • Copyright Infringement: Infringement of copyright takes place when an unauthorized person exploits the copyrighted contents or work of an author or owner without their permission.

How to avoid Copyright on Instagram

With billions of active users on Instagram, it becomes pretty difficult to find the origin of actual violators. While Instagram keeps on updating and amending its terms of use, here are certain key elements that a creator must keep in mind for different kinds of posts that a creator shall do to avoid copyright violation on Instagram. 

Copyright for different type of content on Instagram

  • Photo: Usually the photographer has exclusive copyright over the photos, they click and share to reproduce, distribute or to licence unless they assign such rights to another party. 

In a recent case, ‘Gigi Hadid’, a world-famous fashion model was sued in a Copyright infringement case by a photo agency ‘Xclusive’ in a civil complaint in the US District Court. Xclusive claimed that Hadid posted a picture of herself without taking permission or licence from the copyright owner which is violating their rights. Although this case was settled outside the court it is concluded that even a celebrity has no rights or ownership over their pictures taken by the other party and hence, cannot post them on Instagram without authorization from the copyright holder.

From the above case, it is clear that even though you are the holder of the copyright, your work could be used by Instagram, as we all have agreed upon and entered into a term with Instagram while signing in that ‘Instagram has the right to use, sublicence, post or share any content available on Instagram’ and ‘have a non-exclusive, fully paid, royalty-free, limited license worldwide’.

  • Music: Detecting copyright on music was the major concern with the increase in the number of users, but thanks to Instagram’s automated system that automatically detects the copyrighted music on posts or stories. It gives a warning that certain music is restricted and cannot be used while posting Instagram stories.

Here’s what you can do to avoid copyright violation on music:

  • Use royalty-free music-

While posting music search for royalty-free music available on the internet it will not only save you from the claim but you will be able to post your favourite music track carefree.

  1. Give credit to the original creator, owner, copyright holder, music label

Whenever you are posting music make sure you give credit to the original creator, owner, holder or music label with proper credit.

  • Take permission from the copyright holder-

Simply take permission from the copyright holder before reposting their music on your feed or story and tag them.

  • Use your original music- 

If you can, then why not. Instagram has become a place where creativity is flourishing. It has provided a platform to showcase your talent with the authenticity of your music. 

  • Put a video while posting music-

When you post a video along with music the main purpose of that post is a video. So, even if Instagram mute the music on your video, your video might be safe on your feed.

Video: Ever since the lockdown occurred, people have started posting more videos on Instagram which lead to the violation and Instagram has started taking down such videos which violate the terms of Instagram especially the music. To be able to make a successful video which is one of the most difficult tasks that takes effort, energy, patience to post, better network and a lot of creativity. It becomes frustrating when you receive notifications like “your video has been taken down” or “video has no sound”. So, here’s what you can do to avoid such a violation and post anything you wish to post and share with your Instagram community.

Pointers to keep in mind while posting a video on Instagram

Follow these to make sure that none of your efforts goes in vain while you post a video on Instagram: 

  1. Keep the video short.

Keep the video as short as possible if you want to use someone else’s copyrighted music on your video. Give proper credit to the author or take permission before reposting on your feed. 

  1. Mixing different copyrighted work.

You can mix different copyrighted works of different artists into creating a single video say for a second or maybe two. 

  1. Modify/ change someone else’s video.

Make some changes or modifications to already existing work like the famous work by “Yashraj Mukhate” in the viral song of ‘Rasode mei kon tha’.

  1. Insta Reels.

Reels are probably the best way to avoid violation of Instagram. As the duration of reels is 15 seconds with a wide range of music options. 

  1. Create an original video.

While there are other options, one should better focus on creating something original, this not only saves you from infringement but also helps you boost your social media following and creativity.

What actions does Instagram take when any copyright violation is reported? 

Instagram takes these three steps when any infringement is reported by the Copyright author or any person concerned. These are as follows: 

  1. It mutes the post and blocks music.
  2. End live streaming.
  3. Takedown the post entirely.

Copyright Exceptions

A person can avoid a breach of copyright or what is commonly known as copyright infringement claims if they have a valid defence against such claims as stated in the Copyright Act, 1957. These are: 

With permission from the original content creator/owner/author of the copyrighted work

If a person took prior approval/permission to use the copyrighted work from the copyright owner either with or without royalty or as the terms they agreed upon, such exploitation is a valid defence in the eyes of law.

Fair use

Fair use is a doctrine or defence against copyright infringement claims. Generally, when a person uses another person’s copyrighted work without the permission of the owner, but that does not mean misuse of the owner’s work to deprive them of economic value and legal protection.

Fair use consists of song parody, review of a book or movie, sharing a post on Instagram with due credits to the original creator of the post or using their picture for informational purpose specifying their names or Instagram account handles. It will also include the purpose of use, nature of copyrighted work and/or the amount of work used.

To know more about Fair use please visit 

De Minimis

De minimis which is a shortened version of the legal phrase De Minimis non-curat lex” literally means ‘the law does not concern itself with trifles’.When applied to copyright law, de minimis the courts are not going to concern themselves with trivial copying, but what should constitute de minimis is not clearly stated by the statute and depends on the discretion of the court. 

To constitute de minimis the court considers the following five factors:

  1. The nature of harm,
  2. The cost of adjudication,
  3. The purpose of such a legal violation,
  4. The effects on the legal right of the owner,
  5. The intent of the wrongdoer. 

Case Law

Sinclair v. Ziff Davis, LLC: 

In Sinclair v. Ziff Davis, LLC, the Plaintiff Stephanie Sinclair a photographer filed a copyright infringement suit against Defendant Mashable Inc, a media and entertainment platform that operates mashable.com and its parent company Ziff Davis LLC. The defendant approached the Plaintiff seeking permission to post a photograph on their website which was posted by the Plaintiff (Owner) on her Public account on Instagram which was denied by the Plaintiff. Later the Defendant posted the said picture on their website stating they have taken permission from Instagram.

It was held by the court that “owner’s right to license is separate from Instagram’s right to sublicense as a licensee’.

In the amended decision, the court held that “the pleadings contain insufficient evidence to find that Instagram granted Mashable a sublicence to embed Plaintiff’s photograph on its website”. 

Subsequently, Instagram changed its terms of use, stating explicitly that the use of embedding API does not grant the user an automatic sub-licence for the image.

Conclusion 

We all know how much we like sharing posts and photos on our favourite social media app ‘Instagram. But what it requires us is to be careful as to what we post and how we post. As much time we devote to writing a perfect caption, we should take some time to read the terms of service before signing in. And as much as we are familiar with the celebrities latest posts, we should also keep ourselves updated with the changing policies of Instagram.

To conclude, post anything that is your original creation. While posting someone else’s work, take permission and provide proper credits or simply take sublicence from Instagram.

References


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