Are you an Instagram Influencer? IP Legal Concerns

Sharon Givoni Consulting Intellectual Property

For some, Instagram has become a career bringing in a steady income. Those with the skill (or luck) to amass a hoard of followers have vast potential to a sizeable living from paid promotions. However, before uploading your next post to Instagram to be seen by millions, there are a few influencer legal concerns that you should keep in mind.

Copyright in Australia:

The Copyright Act 1968 (Cth) applies all across Australia and protects the creation of a variety of works including, literary, dramatic, musical and artistic works.

Typically, the creator of the work is regarded as the legal owner of the work. Copyright protection arises automatically. There is no need for the work to be registered or paid for in order to be protected by Copyright.

For example, if someone takes a selfie and posts it to Instagram, they are the legal owner of that image. As the legal owner, you have exclusive rights over that image. These include the right to:

• reproduce the work;
• communicate the work; or
• make the work public (i.e posting online).

However, even a simple selfie can have copyright issues. For example, if logos or trade marks appear in the photo without permission from the company that owns them or if there is more than one person involved in the creation of the work.

If you have had a professional photographer take the images, or sent your selfie to a studio for editing, this can affect the legal rights in the image. In this case, the photographer may own the copyright. It is advisable that a written agreement is in place which clearly identifies who owns copyright in the work.

Instagrams Position

Instagram has a policy in place when it comes to copyright. Your rights to your work do not change once a photo has been posted to Instagram. The difference is, once you post a picture to Instagram, the platform itself is provided with a licence to use the photo however it wishes.

Further, Instagram, should it want to, can transfer or sub-licence their rights in the work to a third party. This sub-licence can then be extended to other third parties such as business partners and affiliates.

However, Instagram loses their licence to your work once you delete either the photo or your account from the platform.

Be warned, even though you may delete a photo and end the licence, this does not stop your work being public if someone else has posted your photo on their account. If someone else is using your copyrighted work, Instagram provides a web form to report the violation. Instagram will then investigate the claim and will remove the infringing content.

Influencer Legal Considerations

If you are on your way to becoming, or already are an Instragram influencer, then there are a few things you should keep in mind in regards to your intellectual property.

In the case of a business relationship with a brand for marketing or promotional purposes, make sure you consider whether or not any agreement made is transferring ownership of your IP to that business or whether you are only providing the business with certain licencing rights. As an influencer, there are quite a few legal concerns in relation to marketing and it is best to speak to a lawyer first before entering any kind of business relationship.

A few key considerations for any licence agreement include:

• Usage – How will they use the photo? Are there any restrictions? Are they allowed to modify the photo?
• Exclusivity – Are there any restrictive clauses in the agreement?
• Ownership – Are you providing the business ownership of your work? If so, ensure you are granted a licence to use your photo.

Commercial agreements on Instagram or any social media platform can be difficult to navigate, and if not addressed correctly could land you in a spot of trouble. It is important to ensure your IP and copyright rights are protected. It is advisable that you consult a lawyer before entering any agreements to make sure your rights are protected.

At Sharon Givoni Consulting, we can assist in drafting, reviewing and altering commercial agreements for you to make sure your intellectual property is safe. We can also provide advice to make sure you are compliant with your platforms guidelines and that you are not breaching someone else’s rights. Visit our services page for more information, or contact us here.