Who Owns the Content Posted on Social Media?

Some businesses seem to think that just because a photo has been posted on Instagram or Twitter it’s free for the whole world to use.

Not true, as some businesses — including Groupon and Agence France-Presse — are finding out at great cost.

Last year I addressed the question of Can Other People Sell Your Instagram Photos?

In that article, the issue was on “fair use” of copyrighted pictures in art, and how much transformation is needed for a new work to pass the “transformation” test that allows the use of other people’s images.

Here, we have a few cases where businesses have been using images without any transformation at all. The question is whether posting your images in a public place such as Instagram or Twitter, especially if you “tag” them with a business’s name/location, makes them free for re-use.

Instagram Terms of Use

Instagram’s terms of use clearly state:

Instagram does not claim ownership of any Content that you post on or through the Service…You can choose who can view your Content and activities, including your photos, as described in the Privacy Policy.

The company’s FAQ also plainly state:

Does Instagram let advertisers use my photos or videos?

No. You own your own photos and videos. Advertising on Instagram doesn’t change this.

Twitter Terms of Use

Twitter’s terms of use explicitly state:

You retain your rights to any Content you submit, post or display on or through the Services.

License to Use Your Content

Both Twitter’s and Instagram’s terms of use agreements include a license from the creator to the company. This is Twitter’s:

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

Agence France Presse (AFP) v. Morel

Daniel Morel, a photojournalist, tweeted pictures of the 2010 Haiti earthquake.

The story of how AFP obtained the pictures is a little complicated, but to make a long story short, Morel posted the images to Twitter, and AFP had distributed the images, including to Getty Images, who resold the images to others.

AFP filed a motion with federal court in New York, seeking a declaration that it had not violated Morel’s copyright.

In Agence France Presse v. Morel, AFP claimed (among other things) that by posting the pictures to Twitter/TwitPic, Morel had granted them a license to use them.

The judge disagreed. She concluded that a license to retweet a photo is not the same as a license to take the photo off Twitter and use it for commercial purposes:

AFP’s removal from Twitter and commercial licensing of the Photos-at-Issue is not akin to the rebroadcast of a Tweet.

Morel was awarded $1.2 million for copyright infringement.

Dancel v. Groupon

In a more recent case, Christine Dancel has initiated a class action lawsuit against Groupon. Dancel took a picture of herself at a restaurant, and shared the picture on Instagram, tagging the restaurant. Not long afterwards, she found that Groupon was using her picture in an ad deal for the restaurant.

The lawsuit claims that Groupon has inappropriately appropriated pictures in this manner from over 1,000 photographers — creating a false impression that the “people in the photos are satisfied Groupon customers even though they are not.”

The case has not been decided yet, but given Instagram’s terms of use it seems very likely that Dancel will win. What’s unknown is what damages will be granted.

Takeaway

Just because something has been posted to Instagram, Twitter, or other social media platforms does not mean that content is now in the public domain and free for anyone to use. Social media is no different than other forms of online content — the content creator retains the copyrights to any images, text, or video he or she created. When reusing content found on the internet it’s vitally important to make sure you have obtained the right to do so from the content owner.