How Instagram Users are Building Businesses based On Others Intellectual Property

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 infringementand 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.

What about fair use, the copyright defense that shields potential infringers from liability? Well, it would likely be “an uphill battle” for these Instagram account operators to make successful fair use arguments and escape copyright infringement liability that way, according to Jeanne Fromer, an intellectual property professor at New York University Law School. That is because their use of the imagery is probably not aptly categorized as limited or “transformative” in nature, which is what fair use requires.

Instead of using the copyright-protected images for commentary, criticism, or parody purposes (i.e., the types of uses typically considered fair), most of these accounts are inherently entertainment-based and in a number of instances, they are bringing in revenue as a result of the followings they have built almost exclusively by leveraging others’ intellectual property. Those facts do not bode well for a fair use defense.

“I'd guess that a court would be unlikely to find that the use of preexisting material is transformative in the typical case, especially when the work is being used commercially in a way that can interfere with a reasonable market of the copyright owner,” per Fromer.

“At most,” she says, “I'd think that the Instagram user might be able to argue that the compilation of preexisting materials itself is transformative of the separate underlying works, but I think that the typical Instagram user of this kind would not be able to establish as much.”

Looking beyond the legality of these accounts, themselves, the influx of them, more generally, speaks to a larger shift in the understanding of intellectual property in the digital age, where songs are regularly downloaded – easily and illegally – for free and images are commonly treated as part of the public domain even if they are subject to legal protections.

“I think anybody that grew up with access to the Internet has a complicated relationship with intellectual property,” says journalist and social media strategist Daisy Alioto. “In some cases, it’s sheer ignorance – others know the laws and have ascertained that the rules do not apply because they are not often enough enforced.”

Regardless of the individual reasons, the modern approach to intellectual property coincides with discussions amongst legal experts and lawmakers, alike, as to the concept of intellectual property in the digital era, and whether there is a need for doctrinal reform, such as those that have been put forth by Harvard Law professor and Creative Commons founder Larry Lessig, who sees this not merely as a legal issue but as a cultural one, as well.

“At some point [a copyright protected] work should become free for culture to build on it,” Lessig has been quoted as saying on more than one occasion, referring, generally, to a multi-decade term of protection, subject to the creator’s option to share his/her work publicly in a limited way, which is the basis of Creative Commons and its various licenses.

Some of the relevant questions, taking into account the immediacy of the internet and it’s effect on intellectual property, become: given what we know about the general (and potentially prevailing) approach to copyright protection, what does intellectual property really mean and call for in 2018? And still yet, what duration of protection is enough to facilitate the goal, as set forth in the Constitution, of “promot[ing] the Progress of Science and useful Arts”? These are issues that are very much up for debate.

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