How to Avoid Copyright Disaster on Instagram

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A guide for startups and shutterbugs.

Ed’s note: This post was written by guest editor Jessica Kerr, director of Sinclair + May.

I love Instagram. It lets me communicate to the world what I’m about (nourishing food, natural light and preventative health in life, law and business!). In so doing, Instagram has allowed me to connect with so many like-minded clients through my page, @thelawyerslunchbox. And I know many of my clients love using it for their own businesses. But we all need to make sure we stay legally safe on Instagram. This means not falling foul of Insta’s terms and conditions, using the right images and not saying anything illegal.

Here are some tips for getting it right (and staying safe).

Consider the types of images

Instagram has the right to remove, edit, block, and monitor accounts containing content that Instagram determines violates their terms of use.

To avoid problems, you must not post violent, nude, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive photos. This term is interpreted sensibly, for example if your business is in fashion, intimate apparel, swimwear, music, celebrity, modelling, etc, photos may be quite sexual without causing any trouble. But nudity, or pornographic inference (even if digitally-created), will not be acceptable. Use common sense about what Instagram and its diverse audience may find offensive. Nudity in photos of drawings, paintings and sculptures will be acceptable, as will photos of mastectomy scarring and breastfeeding women.

If your business involves boxing or fighting of some kind, you can show a certain level of violence – but nothing overly gory. Again, common sense is required. Make sure you post images that can communicate your message without shocking or antagonising users. You don’t want to be upsetting customers or potential customers with your content.

A word on copyright

You can only use images that do not infringe others’ intellectual property rights. If you are posting authentic images created by you or your business (such as your own photos, photoshoots, illustrations, videos, or graphics) then this is not an issue. But if you want to post an image found online, then you must be vigilant. There are millions of high-quality graphics and photos online available for free commercial use. Many websites curate images in the public domain, and you are free to use them in any way. In most cases, you do not have to provide attribution. But check the terms of the site to make sure. If attribution is required, check what format.

If you repeatedly infringe other people’s intellectual property rights, Instagram will disable your account.

It is best to assume every image you find online is copyrighted – a copyright notice is not legally required as notification of copyright. If an image is covered by copyright, the copyright holder may agree to some uses but not others. Check this before using the image. If you alter a copyrighted image, it does not relieve you from potential liability. If you repeatedly infringe other people’s intellectual property rights, Instagram will disable your account.

On Instagram, you are liable for what you upload. This means you are legally responsible for copyright violations even if you hire a social media professional who chose and used the offending image. It is important to ask your social media manager where they source their images. You should contractually ensure that if an image they use is found to violate copyright and you are required to pay, that they will indemnify you.

What you can legally say

Don’t copy any other person’s written work in your Instagram posts, as this may infringe copyright. And don’t post unwanted comments, likes or other forms of commercial or harassing communications (spam) to Instagram users. This includes repeatedly contacting people for commercial purposes without their consent. Instagram requests that you use common sense when interacting with others and posting content.

Further, online cyber bullying is a crime in Australia. You must not threaten, harass, offend, stalk, access others’ Instagram accounts without permission or defame someone on Instagram.

If you have concerns about your business Insta account and would like to run them past a friendly ear, feel free to book in a free 15-min chat with our team.

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