This Article has been written by Mr. Bhavya Swami, a 1st year LLB student of LLOYD LAW COLLEGE, Greater Noida.
INTRODUCTION:
As you scroll through Instagram, you encounter a steady stream of meticulously curated images that have come to epitomize our digital lives.
You squint and realize that it’s your photo being used without permission – the original picture you took and created, now displayed by someone else illegally.
Instagram has become a battleground for intellectual property infringement, revealing the platform’s dark side.
Sharing content online is now incredibly easy with just a click, so it is crucial to have an in-depth understanding of intellectual property rights.
As a leading social media platform, Instagram has become rife with intentional and unintentional copyright infringements, causing creators to urgently safeguard their work.
Intellectual property rights are critical for fostering innovation, as without such protection, businesses, corporations, and individuals would be unable to fully benefit from their innovations and would consequently invest less time and resources into research and development. While artists should be fairly compensated for their work to maintain cultural vitality, copyright protections do not necessitate unlimited rights without any exceptions or limitations. To strike a suitable balance between the rights of copyright holders and the interests of users, intellectual property laws allow for certain limitations — instances where protected works may be used without the copyright holder’s permission. Copyright, a type of intellectual property right, grants the creator of a creative work exclusive rights over that work for a limited period. However, copyright law includes exceptions like “fair use” that place limits on a copyright holder’s control. This article examines the fair use doctrine and how it applies to content on social media platforms.
What is fair use?
Fair use is an affirmative defence used to legally justify the unlicensed use of copyrighted material without the copyright holder’s permission. It allows limited use of copyrighted works for purposes like criticism, commentary, news reporting, teaching, scholarship, or research. However, fair use is determined on a case-by-case basis, as there are no definitive standards. Copyright law requires examining four factors when evaluating if a use qualifies as fair:
- The nature of the copyrighted material that was used.
- The size of the copyrighted material used.
- The nature and purpose of the copyrighted material used should be considered.
- The use of such copyrighted material may impact the potential market.
What is Intellectual Property Infringement on Instagram?
Instagram users commit intellectual property infringement when they post images, videos, or other original content without obtaining the proper permission or authorization from the copyright holder.
This infringement can take many forms, including reposting images, sharing videos, copying and pasting captions or comments.
It is unquestionably a violation of the creator’s intellectual property rights, including copyrights, trademarks, and other related rights.
Intellectual property infringement is a widespread issue on Instagram, since the platform primarily focuses on sharing visual content.
By sharing copyrighted material without permission, users may unintentionally or deliberately infringe on legal rights, exposing themselves to legal action and harming the original creator’s ability to earn money from or control usage of their work.
Copyright Report on Instagram:
- Identify the copyrighted content: If you find content on Instagram that you believe violates your copyright, specify the exact content in question when reporting the infringement.
- Gather evidence: Collect evidence such as screenshots or the URL of the post or profile to document the suspected copyright infringement. Ensure you have proof that verifies your ownership of the copyrighted content.
- Submit a report to Instagram: To report copyright infringement on Instagram, submit a detailed report through their online form. Include all relevant evidence and specifics of the infringement.
- Wait for Instagram’s response: Instagram will review your report and take appropriate action, which may include removing the infringing content or disabling the account of the user who posted it.
Reports of Copyright Infringement
To report copyright infringement, follow these steps:
- Identify the infringing content: To address copyright infringement, identify the exact content – such as text, images, videos, or other media – that you own the copyright to and is being used without permission.
- Gather evidence: Collect evidence such as screenshots or the URL of the post or profile to document the suspected copyright infringement. Ensure you have proof that verifies your ownership of the copyrighted content.
- Contact the infringing party: Consider reaching out to the infringing party and asking them to take down the content before submitting a formal complaint. If they do not comply or you cannot contact them, move on to filing the report.
- File a report: If you find copyright-infringing content hosted on a website, social media platform, or any other online site, you can file a report of the infringement directly with that platform.
- Wait for a response: The website or platform will review your report and then take suitable action, such as deleting the illegal content and disabling the user’s account.
Types of Intellectual Property Infringement on Instagram:
Intellectual property infringement on Instagram occurs when users post content containing copyrighted, trademarked, or otherwise legally protected material without permission. Common examples include using brand names, logos, songs, videos, or images without authorization from the owner.
Some of the infringement on Instagram are as follow:
- Copyright Infringement: Users may post images, videos, or other content that they do not own or have permission to use, including sharing copyrighted photos, artwork, or videos without the creator’s consent.
- Trademark Violations: Using logos, brand names, or trademarks without permission from the brand owner in profile names, captions, or images constitutes unauthorized use.
- Counterfeit Products: Some accounts may sell unauthorized, counterfeit, or fake versions of branded products, infringing upon the trademarks and copyrights associated with those products.
- Design Replication: Fashion brands and designers often grapple with the unauthorized copying of their original designs, resulting in counterfeit goods that infringe on their creative work.
- Plagiarism: To avoid charges of plagiarism, writers, bloggers, and content creators must properly attribute or obtain permission for any content that is not their original work before publishing it in articles, captions, or posts.
- Unauthorized Reposting: Even if an account credits the source, reposting content without explicit permission can still be copyright infringement.
Protecting Your Own Content on Social Media:
To prevent others from appropriating your intellectual property on social media, it is best not to post it online at all. When you share content on a social media platform, you grant that site a license to use it and allow others to view it, even though you retain ownership.
To protect your content, include a copyright statement on your photos. Be aware that others may appropriate your property without permission. You must diligently monitor for violations and promptly file complaints. Failing to do so may weaken legal claims.
The best way to file a copyright complaint is to send a DMCA takedown notice, a specific formatted request, to the website’s ISP (web host). This prompts the ISP to remove the allegedly infringing content and notify the website owner, who can issue a counter-notice. Consulting an attorney ensures you follow proper procedures if you decide to continue from there.
How to Prevent Intellectual Property Theft on Instagram:
- Create original content: To steer clear of infringing on others’ intellectual property, generate your own unique content by taking your own photographs, producing your own artwork, and composing your own original captions.
- Use royalty-free or licensed content: You can also use content under royalty-free or licensed terms without infringing on intellectual property rights, as long as you follow the license terms and conditions.
- Obtain permission: If you repost someone else’s intellectual property, give proper credit by tagging them in the post or mentioning them in the caption.
- Avoid using trademarked material: Trademarks are words, phrases, symbols, or designs that uniquely identify and distinguish a brand or product. Using trademarked material on Instagram without permission can lead to legal trouble, so it’s safest to avoid using trademarks that don’t belong to you.
- Understand fair use: The doctrine of fair use allows using someone else’s intellectual property without permission in certain situations, but understanding the complex factors that determine fair use is crucial before claiming it as a defence, as this area of copyright law is nuanced.
Case studies:
Here are some hypothetical case studies that illustrate instances of intellectual property rights (IPR) infringement on Instagram:
Case Study 1: Copyright Infringement
Background:
Sarah is a professional photographer who specializes in landscape photography. She has a significant following on Instagram, where she regularly posts her stunning photographs from various natural landscapes.
Issue:
Sarah discovers that several Instagram accounts have reposted her images without her permission. One particular account has gained a considerable number of followers by consistently sharing Sarah’s work without crediting or seeking her consent.
Actions Taken:
Identifying Infringement: Sarah notices the infringement after a follower alerts her to the reposted images. She conducts a reverse image search using her photos to identify other accounts that might be using her work without permission.
Cease-and-Desist Notices: Sarah directly contacts the accounts that have reposted her images without permission. She sends them cease-and-desist notices, requesting the immediate removal of her photographs and proper credit if they wish to continue sharing her work.
Instagram Reporting: Using Instagram’s reporting tools, Sarah reports the accounts for copyright infringement, providing evidence of her original posts and the unauthorized reposts.
Outcome:
Removal of Unauthorized Posts: Some accounts promptly remove Sarah’s images upon receiving the cease-and-desist notices and being reported on Instagram. They apologize for the oversight and promise to credit her properly in the future.
Legal Action: Despite Sarah’s efforts, a few accounts continue to disregard her requests. Sarah seeks legal advice and decides to pursue legal action against these persistent infringers for continued unauthorized use of her copyrighted photographs.
Lessons Learned:
Sarah realizes the importance of actively monitoring the use of her images online and promptly taking action against unauthorized use. She also learns that while some infringers may comply with requests, others might necessitate legal intervention to enforce her rights.
Case Study: Intellectual Property Rights Infringement on Instagram
Background:
Company X, a fashion design brand, has been active on Instagram for several years, showcasing their original clothing designs, accessories, and lifestyle imagery. Their success on the platform has garnered a significant following, with over 500,000 engaged followers.
Issue:
Recently, Company X discovered that multiple Instagram accounts were replicating their designs and posting them without permission or proper attribution. These accounts, often labeled as “fan pages” or “inspiration pages,” were capitalizing on Company X’s designs by reproducing them and selling counterfeit products at significantly lower prices.
Actions Taken:
Identification of Infringement: Company X’s social media team, while monitoring online activities, noticed a surge in comments and direct messages reporting counterfeit products bearing their designs. They actively conducted searches using relevant hashtags and keywords to identify the accounts involved in the infringement.
Cease-and-Desist Notices: Upon identifying the infringing accounts, Company X issued cease-and-desist notices to the account owners, requesting the immediate removal of the counterfeit products and any content violating their intellectual property rights. The notices were sent through Instagram’s direct messaging and email when available.
Reporting Infringement to Instagram: Simultaneously, Company X utilized Instagram’s reporting tools to flag the counterfeit accounts for copyright infringement. They provided detailed evidence, including screenshots of their original designs and the replicated products, to support their claim.
Legal Counsel Engagement: Recognizing the severity of the situation and the need for legal recourse, Company X engaged their legal team to pursue further actions. This involved drafting formal legal notices to the infringing parties and preparing for potential legal proceedings if the infringement persisted.
Outcome:
Immediate Takedown of Content: Instagram, upon reviewing the evidence provided by Company X, promptly removed the infringing content from the identified accounts. This action included the deletion of posts featuring counterfeit products and designs.
Compliance from Some Accounts: Several of the accounts responded positively to the cease-and-desist notices, immediately removing the infringing content and issuing public apologies for their actions. They also pledged to refrain from further infringement.
Continued Challenge: Despite the initial success in removing infringing content, a few accounts persisted in their unauthorized use of Company X’s designs. Legal proceedings were initiated against these persistent infringers, seeking damages for the infringement of intellectual property rights.
Lessons Learned:
Proactive Monitoring: Regular monitoring of social media platforms is essential to promptly identify instances of intellectual property infringement.
Swift Action and Legal Support: Taking immediate action against infringing accounts and seeking legal counsel when necessary can effectively protect intellectual property rights.
Educating the Community: Engaging followers and the online community about the importance of respecting intellectual property rights can deter future infringements and build a supportive audience base.
Persistence in Enforcement: While some infringements may be resolved amicably, persistent offenders might require legal action to enforce compliance and protect the brand’s integrity.
Conclusion:
In summary, intellectual property violations on Instagram are a serious issue with potential legal and monetary repercussions for those who infringe on others’ rights. To steer clear of infringing on someone else’s intellectual property, Instagram users should generate original content, get authorization before utilizing another’s work, properly credit any borrowed content, and refrain from using trademarked material. Furthermore, comprehending fair use and licensing provisions can aid users in navigating Instagram’s intricate intellectual property legal landscape. Adhering to these guidelines can help users respect others’ rights while shielding themselves from possible legal problems related to intellectual property violations.
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