Can you use other people’s INSTAGRAM® photos?

Sharing photos and videos with friends and followers on INSTAGRAM® is more popular than ever. Every day, millions of photos and videos are uploaded to the platform, and more users join every single day.

If you have been swept up by the eternal stream of images and videos, it can be tempting to share other users’ content or use that content in different contexts. The content was uploaded voluntarily – so everyone’s entitled to use it, right?

The answer to that question is a resounding NO!

Stine Sønstebø, Attorney-at-Law, Head of Legal Norway

“There are so many wrongful assumptions about when it’s okay to share content on social media platforms. But it’s important to actually know the rules to avoid receiving a monetary claim or risk claims for damages,” says attorney-at-law Stine Sønstebø, Plougmann Vingtoft’s Head of Legal Norway.

In this article, she guides you through the dos and don’ts of using other people’s content on INSTAGRAM®.

Images are protected by the Copyright Act

All images uploaded to INSTAGRAM®, regardless of whether the profile is private or public, are protected by the Copyright Act. The law requires the photographer behind the content to consent to the photos being used in other contexts.

By uploading a photo to INSTAGRAM®, the user only consents to INSTAGRAM® showing the content giving other users the possibility to comment or ‘like’ it. However, this does not allow others to copy the photo and to use it on other social media platforms, on their own profile or in business contexts.

The Copyright Act also applies to INSTAGRAM®’s own sharing functions, i.e. reposting or embedding. This means that you are not allowed to share images without consent, even if you do refer directly to the original photographer. However, the practice of sharing images without consent is very common and may even seem legal, but this is not actually the case. All sharing functions still require the consent of the copyright holder, and the rights holder must always be named.

So if you want to stay on the right side of the law, ALWAYS get the photographer’s permission before sharing their INSTAGRAM® content. Please note, however, that the account holder is not always the photographer. In that case, you need to find another way to contact the photographer.

What are the consequences of using other people’s INSTAGRAM® content?

If you have used a photo or video without permission, you run a risk that the content gets removed and your use has to cease immediately. If you have used the content in marketing materials or in a campaign, you risk having to destroy the material. You also risk receiving a license fee or a claim for damages if the photographer can prove to have suffered a loss. Financial demands like these have become a common occurrence, and the price often sits between EUR 500-1,000.

What are you allowed to do with other people’s INSTAGRAM® content?

It is legal to encourage users to voluntarily share a photo under a specific hashtag on INSTAGRAM® and then display it on your website using a plug-in or INSTAGRAM® feed. However, this use is only legal if you state it in, for example, your Social Media Policy, so that you avoid any misunderstandings and deception. Please note that the used hashtag must be unique to ensure that any use can be directly linked to the above policy.

Summary of the rules for using other people’s INSTAGRAM® content:

  • All pictures on INSTAGRAM® are protected by the Copyright Act.
  • There is no distinction between private use and commercial use in Denmark. Therefore, consent must be obtained in all contexts of use.
  • Consent must be given by the photographer, and often the holder of the INSTAGRAM® account is not the photographer. In these cases, it is necessary to find the photographer.
  • If the photo features other people, then these people must also consent to the use.
  • If the photo contains products, it is important to pay special attention as the commercial use may violate design and trademark rights as well as be in violation of the Marketing Act.

The above-mentioned rules also apply to FACEBOOK® and any other social media platform.

If you are in doubt about whether your use of INSTAGRAM® content is legal, or you want to know more about how to formulate a Social Media Policy, please feel free to contact one of our experts. You can also reach us via this contact form.

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