Note: This article first appeared in the Rising Tide Society blog, my favorite online resource for creative entrepreneurs. Head there now to find the most up to date information, inspiration and resources by creatives, for entrepreneurs.
As a creative entrepreneur, chances are you’re on at least one social media platform, most likely Instagram. With algorithms constantly keeping us on our toes, sometimes reposting content, or “regramming” photos from others and sharing hashtags is the best way to boost engagement and exposure for our business. But because Instagram itself doesn’t support sharing content, it’s tricky to know how to best keep your business on the right side of the law. So how can you share content on Instagram legally?
As harmless as it seems, reposting Instagram content actually enters the waters of copyright law. The person who originally shares the post owns the copyright to that image. The most common misconception I have seen around regramming is that tagging, or crediting the original source through apps like Regram is good enough. As of this summer, that’s no longer true! Courts have started to address the question of regramming on Instagram. No matter how much you edit the photo, merely linking to the original source of the photo in the caption won’t keep you out of copyright trouble. If you want to regram legally, obtaining one of the following two types of consent is key:
Let’s start with an example that pops up all the time. An online shop owner wants to run a limited time campaign, and sends an email with a discount for a product, telling their followers that if they take a photo with the product and use the hashtag, the shop owner may share the image on their own account. Can the shop owner legally share any of those photos without contacting the users first?
In short, yes, because the shop owner has established implied consent. The shop owner made it clear that he or she wanted the subscribers to use the image with the product as a way to promote the product and their photos. When the individual used the hashtag provided, their actionsindicated their consent to that agreement. Therefore, the Instagram user established implied consent.
Practical tip: If you have created something that you want to be shared on social media, include your @instagramhandle (for example, @paige.hulse) in the image itself, and say so in your caption.
Another example that happens often: What if one of your favorite Instagram influencers posts a beautiful photo that fits perfectly with the aesthetic of your own feed? If that person hasn’t followed any of the steps indicating implied consent, then you need their express consent to repost the photo. Express consent is just that: consent expressed by the owner of the image, preferably in writing.
You can only share the photo on your own account after they have provided their express consent. Just going through the steps of asking for permission isn’t enough- you need actual consent, in writing if possible. Express consent can be obtained as easily as commenting on the photo itself, or sending the original owner a direct message asking for permission.
There are two specific times when you must get express consent, rather than rely on implied consent. First, regramming any content with minors. Although laws aren’t clearly defined, courts will always choose to protect the privacy of the child. Therefore, it’s always best to get express consent from the parent. Second, regramming a photo for any promotional purpose. Even if you have permission to use the photo, if the original owner doesn’t expressly grant you permission to use it for promotional purposes, the original maker of the content might not have released the copyright for it. Technically, they could be entitled to financial dividends of any revenue you generate. In either of these scenarios, make sure that consent contains specific wording saying that they agree to release the photo for the specific purpose of your use of the photo.
The world of social media is ever-evolving, and the law rapidly changes as the landscape fluctuates. It’s not smart or practical to try to keep up with all of those changes, so ensuring that you are sharing content with the permission of the owner is the best way to protect your business. Plus, it is the most respectful way to interact online, and also builds your respect and reputation within the community.