What You Can & Can't Do With Other People's Instagram Photos

Photographed by Lauren Maccabbee.
For full-time influencers, a thoughtfully curated Instagram grid full of envy-inducing photos is not only their portfolio, it's how they pay their bills. The upper echelon of the influencer community monetise their posts through LiketoKnow.it, a mobile service owned by influencer platform RewardStyle, which makes it easy to earn money when followers shop through affiliate links.
This weekend the 11,000 influencer-strong RewardStyle community was alarmed to discover the website PopSugar was not only displaying many of their photos without permission — it had also replaced LiketoKnow.it's links with its own ShopStyle affiliate links. PopSugar explained the posts were a mistake, the result of an experiment accidentally left live on site, but it's unclear if RewardStyle will press charges. (Although RewardStyle declined to share influencer earnings through LiketoKnow.it, a spokesperson confirmed consumers bought over $300 million worth of product in 2017.)
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While the PopSugar incident is an extreme example of what not to do — you can't take someone else's photos without their permission and profit from them — it does raise an important issue: The ease of sharing on social media, combined with a lack of knowledge around what counts as copyright infringement, means people's work is often used without their permission. There's a good chance you've infringed on someone else's copyright on Instagram, without even realising it.

There's a good chance you've infringed on someone else's copyright on Instagram, without even realising it.

For help defining the grey area and getting to the root of what you can and cannot do, we went to Ryan Garcia, a professor at the University of Texas School of Law and co-author of Social Media Law In A Nutshell. Here, a handy guide to staying on the right side of the law.
Photos you designate as "public" and "private" are not in the public domain.
"When other people see my content labelled as 'Public' they may confuse that with content in the public domain, or just think, Oh, it's marked 'Public' so anyone can do anything with it. But that's not what it means. That label is simply the access granted by the author — in this case 'Public' means anyone on the platform can view and interact with the content. It is not a waiver of all other rights for that image."
To share someone else's Instagram photo, you need to get their permission.
"Without [permission], you're infringing on someone else's copyrighted work. There are a few times when that may not be the case — it depends on the photo itself and its origins — but the vast majority of photos you see on Instagram and other services that were taken by the individual posting the photo belong to that individual.
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"Photos have been covered by copyright protection from the beginning — the social media revolution hasn't changed that. It's just a lot easier for people to infringe on others' copyrights."
You can only share Instagram photos without permission when Instagram allows it.
"Right now, for example, some pictures can be shared to Facebook or shared with individuals via DM or by Messenger. If Instagram were to create a function similar to Twitter's retweet, then that would be allowed as well. But anything that goes beyond Instagram's built-in functionality infringes on the rights of the author of that photograph. That would include taking a screenshot and posting it, saving the image to your computer or device and posting it somewhere, or even using a third-party app to automate those steps and repost someone else's photo — even if you give credit to the original photographer or you don't make money off reposting the content. I see plenty of people who think their behaviour is okay if one of those two conditions applies to them. Sadly, that's not how copyright works."
At the end of the day, you own the rights to the photos you post.
"If I post a picture to Instagram, I still own that photograph. I've granted a very broad license to Instagram to use that photo on their platform, and another license to my fellow users to see the photo, but I still get to control how it's used outside the platform."
Always abide by one simple rule.
"Only post content that you have the rights to post, meaning you created it or, if it includes content that belongs to someone else, you've obtained permission from the original creator."
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