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Nickers on Instagram – Keeping your copyright safe

by Yolanda Floro on March 9, 2016

I know someone who has a lingerie business and people keep stealing her undies – photographs of them. The photographs are professionally produced and presented, and cost money. The thieves are robbing her.

Social media and Instagram in particular, has changed the way we promote products and services. 400 million people use it every month. The popularity of Instagram and the achingly hip visual content – aimed at aspirational users – allows business owners set their brand with carefully crafted and curated images.

Insta is an extraordinary means to communicate and engage with your target audience and is a great source of inspiration and a way to build trust, influence and attract consumers.

But what do you do when you see an image and realise it’s actually your image? How do you protect your images?

I’ll concentrate on Instagram here, but you can apply it right across social media.

What is copyright and how do I protect it?
The best approach you can take is prevention. Be aware of your rights. Your level of awareness of your intellectual property is important. Copyright is part of an area of law known as intellectual property. Intellectual property law protects the property rights in creative and inventive work and gives certain exclusive economic rights. It is the legal protection of your creative expression, not the idea or information itself.

Dramatic, literary, musical and artistic works, recordings, films and broadcasts are protected by copyright law. Generally in Australia, copyright is for the life of the author plus 70 years.
In Australia, copyright protection occurs automatically when you create the work, i.e. type the words, or take a photograph.

There is no need to register a work officially. The © system is used to show that the work is protected by copyright, but it is not required for protection to occur.

Copyright gives you as the copyright owner, exclusive rights to reproduce, publish, perform and communicate your original subject matter. These rights are economic rights. In many instances the author of a work will be the owner of copyright. One exception is where an employee makes copyright work during the course of their employment, in which case copyright vests with the employer.

The rules relating to ownership of copyright may also be varied under an agreement; for example, an author may agree to assign his or her rights in a work to someone else. Copyright in most commissioned works vests with the person commissioning the work. In plain English, if you commission a photographer to take photographs, you own the photograph’s copyright.
When someone steals your intellectual property, it deprives you of the right to monopolise your exclusive rights.

Ignore anyone who says it’s part and parcel of the Internet. They might be right about it being part and parcel of the Internet, but they’re wrong to think anyone can do anything with copyright material.

What is copyright infringement?
Your copyright is infringed when any act that the copyright owner has the exclusive right to do is done by a person who is not the copyright owner (or his or her licensee). For example, when your photograph is reproduced and/or published without your permission. Even if the person uses a different filter on your original image.

Intellectual property gives you, as the right owner, property rights. There are times that your copyright can be used and not breached. As an Instagram user, you have granted Instagram the right to display your images; otherwise they would be violating your copyright by displaying your pictures in the app:

1. Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy…

Infringement of your copyright is occurs when someone without your permission reproduces the work in material form, publishes the work, communicates the work to public, or makes an adaptation of it. The Copyright Act does include ‘fair use’ exceptions to infringement that allow uses of copyright material without permission. Parody or satire is an exception. You can see an example here.

Instagram Users and Influencers
The more your products appear in user feeds, the better. It’s a tremendous marketing technique. Small businesses can connect, collaborate and/or partner with Instagram influencers who are a great fit for their products and services.

Sometimes influencers discover YOU. If you are collaborating with influencers, you have given them permission to use your images. Users who have discovered your products or services on Instagram, and share it with their audience, should cite you (tag) as the source. Of course if it is a paid partnership/sponsored post, that information must be disclosed.

By signing up and using Instagram, all users agree to the platform’s terms, including this:
4. You represent and warrant that: (i) you own the Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in these Terms of Use; (ii) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service; and (iv) you have the legal right and capacity to enter into these Terms of Use in your jurisdiction.

What can you do if someone is using your work and infringing your copyright?
You can watermark images with your copyright information but it can be cropped out – so it’s better to embed proof of ownership in your digital pictures. There is basic metadata written into a digital photo file which identifies copyright and contact information. Exif metadata is a standard that specifies formats for files recorded by digital cameras. Many cameras and most smart phones have built-in GPS receivers that store time and location information in the Exif header when a picture is taken. Removing or altering this information is prohibited by the Copyright Act in some circumstances.

Be assertive! This is your property. They’re using your property for commercial advantage. Because of the speed of reproduction on the Internet once the first infringement has taken place it can be very difficult to stop it.

The first step is essentially a cease and desist letter, to stop them using your intellectual property. Send a direct message to the account holder on Instagram. Tell them you are the copyright owner of the images and they must immediately stop using your images.

Make sure you have examples of their infringing acts. Use this link to get a sample letter for copyright infringement.

Report the infringing posts to Instagram.

If the infringements continue, you are best to seek legal advice, as further enforcement is generally through litigation. You may not have to go to court to get a result. But be aware this is potentially very expensive; so enforce your rights based on the advice in this article.

The best approach? Prevention. Be aware of your rights. Your level of awareness of your intellectual property is important. Add a disclaimer to your Instagram profile, something like “please don’t use my images without permission” or “all images copyright”. Don’t be shy about demanding that anyone who is stealing your words, sounds or images, stops it and stops it immediately.

This article is not to be taken as legal advice. You should seek advice specific to your situation.

Kat the Label has kindly given Leaders in Heels permission to use their image for this article.

Welcome to Leaders in Heels

Yolanda Floro
Yolanda has worked in media law specialising in the areas of film, television and digital media law, and holds a Masters degree in Law, Media and Journalism. Greatest passion: advocating for women and children. Yolanda holds a Bachelor of Arts in Australian Pop Culture, as well as under-grad & post-grad degrees in Education.
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