November 10, 2015

Sharing content from other people on social media is far from new. We all do it all the time. However, there are some legal considerations you should take time to think about. And, with Instagram, there are additional considerations because the platform itself doesn't support sharing content. So, before you start (or keep) regramming to Instagram, take a look at these legal issues to protect yourself and your business.

Now, to be perfectly clear up front, I am NOT a lawyer. I am far from clear on every legal loophole, rule and judgement out there. And, the laws around social media marketing are vague and confusing, mainly because they lag so far behind current practices and applications. So, please don't hold any of the information in this blog post as formal legal advice. If you have a concern or issue, please consult your own legal support for personalized and accurate advice.

I love the idea of user generated content for businesses. And sharing this content, created by your audience and customers, is wonderful to share on Instagram for a number of reasons. But, how should you go about sharing it once you've found it?

Copyrights

First and foremost, you must remember that the user who shared the original post retains all copyrights to the image you plan to share (unless they relinquish the rights to that image). Therefore, you MUST always give attribution to the original user.

Using an app like Regram or Repost (on both Android and iOS) will allow you to @ mention the original user and share their original post caption on your share. But, more importantly, these apps include a watermark on the image you share with the original user's Instagram username. This is ideal because it guarantees that the original user is given full attribution for their content.

There are situations, and some accounts who share user generated content without including the watermark on the image. This is ok, so long as you are absolutely sure you include the username of the original user in the post caption.

Implied Consent

Ok, so let's a get a little more technical now. You understand the value of the copyright and will ensure that your regrammed content acknowledges the original post creator. Good.

But, do you have the permissions to actually share that content?

Maybe...

If you have asked your audience, customers, and followers to tag your business in their photos (via @ mentions or tags or hashtags), and they did this on their public Instagram profile, then they have essentially provided you with implied consent to use their content.

What do I mean?

Let's say you are a ladies clothing company and you are running a holiday campaign. You ask your followers, customers, etc. to post their photos of themselves wearing your outfits to their holiday parties and indicate that doing so may result in them being featured on your business Instagram account. You ask them to use a unique hashtag specific to that campaign when posting their photos to Instagram (this would be a unique hashtag unlikely to be used by anyone else for common purposes unrelated to your business). So, now a bunch of your customers start posting content of themselves in dresses and outfits at lavish parties around the city. This is obviously great content to promote your business and your brand style. So, YES, because you explained to your audience that by using that hashtag they would potentially be shared on your profile, they have essentially given you permission - via implied consent - to regram their content.

Express Consent

But what happens if there is no implied consent? What if you find something you want to share on your Instagram account, but that person hasn't followed any requests or steps listed by you to give you permission?

In this case, to protect yourself legally, you must get the user's express consent to regram the content.

How do you do this? You have to ask them. And I highly recommend you get the permission in writing.

You can comment on their original post letting them know you like the photo (or video) and that you would like to share it to your account and audience. Then, ask point blank if you have their permission to regram it. You can also send the user a Direct Message asking the same thing if you don't want to post it publicly on their original post.

Once - and only once - they have given you an affirmative response in writing, providing you with permission to regram their content may you share it to your account. If they don't respond, you don't use it. Asking is not enough. You need actual consent.

Content with Minors

Express consent is significantly more important when the image you want to regram includes children or minors. Please be very cautious about this!

Being cautious, doesn't mean you can't do it. It just means, make sure you get absolute written consent to use any photos that include children.

If it's children wearing your products, at your business location, or in any way included in the post (especially if you can see their face), you must ask for permission - from their parent to use the image. I stress parent because the original user and post may actually be on the child's Instagram account and they do not have the capacity to give you permission to use their content. If it's the parent's account, ask them for permission to use the image. If it's the child's account, ask them (likely via a DM) to have a parent provide permission to use the image.

Of course, this goes into a gray area: how do you know it's the parent providing permission. Well, like many websites that require you to click on a box verifying you are over the age of 18 to proceed, sometimes, you have to take their word for it. But you could look at other ways to verify, including having the parent include their Instagram (or other social media) profile in the response to validate it's them responding. Or you could ask the parent to email you from their own email account so that you can verify the approval.

I know, this sounds like a hassle. And it's not to say you can't use children in your regrams. Lots of companies (big and small) do it all the time. You just need to be more vigilant in your acquisition of this content.

And, speaking of minors, this whole concept also applies to businesses affected by age limits. For example, in the US, if you are a company that sells alcoholic beverages, you would want to make sure that the original user is over the age of 21 before you regram their content. Again, ask them point blank for written permission and to verify that they are over the age of 21.

Promotional Content

So, it's one thing to regram someone else's post and share how they enjoy your product or service. That's great!

But, you need to be extremely careful not to include any call-to-action that would generate revenue when using someone else's content. Even if they have given you permission to regram the post, if you have not divulged that you will use the content for financial gain, you could be sued for restitution.

Here's an example. Let's say someone shares a photo with your product in the image. You get permission (implied or explicit) to share it to your Instagram account. But, in the caption you indicate that you still have this product in the store, it's on sale this weekend only, and to come in and purchase one for themselves. Now, it's possible that you are generating revenue off this other person's image which makes it promotional and marketing material for financial gain. And, although they gave you permission to use it, they did not relinquish the copyright to it, and they didn't give you permission to use it for marketing purposes. So, technically, they could be entitled to financial dividends from the sales you generated using their post image.

So, go ahead and regram. Just don't use it for promotional reasons. Or, when you get your explicit consent, make sure that the verbiage indicates they are giving you permission to use the content for any future uses, including marketing and promotional purposes.

 

Are you overwhelmed yet? I know, this is a lot to think about! But I don't want you to fall victim to any of these situations where you could be held liable and lose money, time, and resources. And, please, do not give me the whole "no one else is doing it" excuse. That doesn't fly and it won't hold up in court.

Take the time to do things the right way. Ask permission. Share responsibly. Your audience and customers will appreciate you that much more for it. And you'll be safer in the long run. Set the precedent.

And, as a final thought, I know I wrote this in respect to Instagram, because it is a little different than other platforms when it comes to sharing. But, please, think about these issues and practices when you share anything to any social media site.

Did you find this helpful? Please share:
  1. Thank you Jenn for this post! You helped me earlier with this week on Instagram regarding this exact topic. It is very confusing and I don’t want to infringe on anyone’s personal photos or not share something correctly. I really like repost. I bought the “pro” version and it works great. I just need to remember which Instagram account I’m logged into, lol

    1. lol – I agree, Dee, remembering the right account is the hard part 😉 But I’m glad I was able to help you out and I appreciate that you are wanting to do things the right way!

  2. Thank you Jenn for a detailed information on how to post or sharing others content or images.
    Great .. Thanks

  3. Hi, Jenn,

    I’m so glad you wrote this post, and did so right now! We have been discussing this precise issue in the last couple of my MarComm student intern meetings at the University of Virginia, and I told my team recently that I was going to reach out to some thought leaders about the practice. Little did I know that it was an upcoming and on-target blog post on Jenn’s Trends! Nice timing.

    Thanks again,

    Chuck

    1. Awesome! I’m so glad that this was timely for you, Chuck. And glad to hear that this is something you are discussing on your team.

  4. I’m not a lawyer either but Instagram’s TOS states: “….don’t post anything you’ve copied or collected from the Internet that you don’t have the right to post.”

    In the short version: “Post only your own photos and videos…”

    In theory you could have your account disabled.

    If you regram my content, even if watermarked and attributed to me (I’d be flattered) but I could report you if I didn’t actually want it shared. Even if I take an image of myself wearing your product, I am not giving you the right to use it. I think this could be an area where companies use user-generated content to drive exposure and visibility – something that creates value for them using your content. That COULD be seen as profiting from sharing.

    Granted most would be thrilled to have their content shared, but best to get explicit permission.

    Just my $.02.

    1. Great points, Robert. In all reality, unless someone signs a full disclosure, permitting you to use their content, you are at risk. Of course, the vast majority of people who are posting content on a public platform, with popular hashtags, and tagging a business are looking to be found and would love to have their content shared. But, there is always a risk when sharing someone else’s content, so, yes, explicit permission is always the best/safest way for any business.

    2. Jenn, Great post! This is one of the best explanations of copyright on social media I have ever read (and I am a lawyer!).

      Robert, you are, technically, correct on Instagram’s rights based on their TOS. They say what they say to protect themselves.

      The legal issue, however, is whether the sharing of the content is “fair use”. With or without permission, fair use permits the sharing of the posts. The big factor in the fair use test would be “how the work is used” and “the effect on the value or market of the work”.

      If the photo that is shared isn’t a professional photo or used by the original poster for some type of commercial use, there is an argument that the effect on the work is to spread its reach and, therefore, make it more valuable.

      As to how the work is used, Jenn makes an excellent point about how you should only repost for promotional purposes and not sell through your reposts. Even though your social media account may be for business purposes, promotional content is about creating community (which does not directly make you money) as opposed to advertising (which does make you money and changes the type of use of the post).

      The cleanest option is always written permission directly from the author of the work. If, however, you use hashtags or ask your customers to share on social media regularly, you could create a policy and post it on your site, at your store, or in the email you send to your list asking for the promotion stating that, by using the hashtag, they are granting you permission to repost the content on Instagram or any of your other social media channels. This would be one step beyond “implied consent”.

      1. Thank you so much, Josh! I’m flattered and impressed that you found this post so helpful and well explained 🙂
        And thank YOU for chiming in with your legal expertise on this topic. I appreciate it so much! I like the idea of having something on your website or other location that states the “terms of use” around using a hashtag or promotion.

      2. Josh,

        Thank you. I certainly agree with your ideas on the best way to regram and Jenn’s on the non promotional purpose. I also agree with the point about others wanting their content shared (I do) and if you don’t do not post it.

        That can be easier said than done for professionals like photographers, artists and designers.

        The real concern for me – even if you OK it and grant permission on your site or Instagram profile, Instagram’s TOS still overrides it. They are pretty clear the images must be yours. That means I cannot share content (even with permission) whether from another site or from within Instagram.

  5. The copyright laws in Australia prohibit the use of any persons material without written permission to do so. Doesn’t matter if you credit the persons account you “borrowed” it from. Penalties apply and if you use it for commercial use the penalties can include a share of profits etc. Either get permission or take your own photos, it’s the only way to be sure.

  6. Hi Jenn

    GREAT POST and great timing. I am going to a workshop with a legal firm that apparently specialises in social media in a couple of weeks – and they tend to ebb on the side of being very conservative, so we shall see how that goes, but I have been wondering about this for a while. I always recommend that people use a regram account and get permission but it is a huge grey area for the travel industry who have ongoing hashtags for their state or territory or region and state on their social accounts that if you tag them they may feature you. In most cases, I can’t imagine a business or person ever having an issue with being featured on, say Australia’s massive FB page or Insta account.. and the stories of HUGE increases in revenue as a result of it are very common so it would mostly be a positive. But you never know which photographer or business owner will complain and then we have a precedent. This is one of the best written articles I have seen about it – and I love how you have shown the implied and express consent differences and highlighted issues around minors. Good job! Sharing!

    1. Thanks Donna! So glad that this was timely for you. And I genuinely appreciate the shares 🙂
      I agree that the vast majority of people who are posting publicly, using a popular or specifically branded hashtag, and/or tagging a company are generally going to be thrilled when that company reposts their content. But, you can never be sure, and we’re better off protecting ourselves.
      BTW, check out the comment from Julie regarding copyright laws in Australia too.

  7. A very informative post, thank you for providing the information. I also appreciated Josh’s comment detailing the topic further.

  8. Great post. You brought up a lot of great points. Specifically, I never considered the issue of getting consent from the parents of minors to use them in Instagram posts. This is something I would never have considered. Thank you so much for keeping us informed.

    1. Thanks Micah! I’m so glad to hear that this got you to think of other aspects about consent, especially with minors. Too often we all get a little too comfortable with “well, it’s out there publicly” but we really do need to be cautious when children are involved.

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