How Instagram Users are Building Businesses Based on Others’ Intellectual Property
THE FASHION LAW
Collections of 90’s fashion moments. Curations of pop-culture imagery mixed with architecture-centric images and nostalgic celebrity photos. Accounts dedicated to the notoriously social media averse Mary-Kate and Ashley Olsen, or the notoriously social media-happy Kardashian/Jenners. These are the types of accounts that are widely populating Instagram and in many cases, displaying impressive numbers in terms of followers – millions in some of the most popular cases.
There is a growing pool of people using the Facebook-owned photo-sharing app to create and maintain accounts that aim to meet users’ pop culture fancies, whether they be meticulously-updated celebrity fan accounts, nostalgic fashion ones or something else altogether. More than merely using the 8-year old social media platform to display such imagery, though, the operators behind many of these accounts, having built up a dedicated following, are looking for ways to monetize their followers.
With that in mind, it is not uncommon to find sponsored posts and affiliate links in the mix, with brands identifying these niche and often highly-engaged followings as audiences of interest. Beyond that, in no small number of cases, the operators have introduced their own branded products, including, most commonly t-shirts. In doing so, they join a “growing number of people,” who, as Time put it recently, are making a passive income by selling merch “online — with no overhead, no inventory, and no investment.”
Attempts at monetization by these Instagram account operators prove rational, since studies consistently show that social media is the most effective way to connect to consumers, which is why many brands – big and small – are using Instagram to market their wares to existing consumers and to attract new ones. The practice is also potentially problematic when we consider the fact that in the vast majority of these cases, the curated imagery consists of individual photos for which the Instagram account operators do not have rights, specifically, copyright rights.
This popular type of social media account becomes a lesson in intellectual property, as copyright law in the U.S. (and abroad) awards a photographer, for instance, the exclusive right to (among other things) display his/her original photos, including on Instagram, for his entire life plus 75 years after his death in most cases. This means that in order for someone other than the copyright holder to use an image, he/she generally must get the authorization of the copyright holder, or else, use of the image constitutes copyright infringement. (Note: It does not matter from an infringement standpoint whether credit is given to the copyright holder).
With this in mind, a strict reading of the Copyright Act puts all of the aforementioned Instagram account holders on the hook for infringement – and a lot of it – by virtue of the fact that the images they are using are not their own and are almost certainly being used in lieu of proper licensing practices. The copyright holders in these instances are not the Instagram account holders but the paparazzi who took the images of Mary-Kate and Ashley Olsen leaving the office of their brand, The Row, for instance; or the photographer who captured the oh-so-carefully decorated interior of that eye-catching home; the photographer – or more likely, the magazine, responsible for an editorial at play, etc.
A more nuanced analysis of the situation reveals some potential defenses. For instance, an argument could potentially be made that the operators of these accounts are creating original curations with the photos and thus, are entitled to protection of their own, since copyright law does, in fact, provide protection for original compilations of existing works.
According to the U.S. Copyright Office, “Compilations of preexisting works may be copyrightable if the materials are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes a new work.” It is worth point out that such a “new work” must be the result of creativity and result in originality, as copyright law does not provide protection simply because an individual “worked hard” to created a work, such as compiling a database, directory, or other volume.
If such protection would apply at all to, say, the curation of Kardashian imagery on the many fan accounts (and it’s safe to say, that would be a difficult case to make), that protection would be slim. Do note, though, that any hypothetical copyright protection that does exist does not shield the operators from copyright infringement liability in connection with their widespread use of others’ images.