#ThatPostCouldCauseALegalRoast (Are you using Instagram content illegally… without even knowing it?)

Love it or hate it, Instagram is coming to dominate the world of advertising.  During Super Bowl 50, 38 million people reportedly made 155 million Super Bowl-related interactions on Instagram.  And this week at New York Fashion Week, Tommy Hilfiger introduced the first ever “InstaPit,” treating a group of Instagrammers with celebrity status as they captured his F/W 2016 collection.  Companies can’t seem to stop finding innovative ways to use Instagram to not only advertise to consumers, but also to gain recognition, and to convey their brand.

But along with its ever increasing relevance, Instagram carries uncertainties in the legal arena.  Even people who work in advertising, and are highly savvy with social media, are not entirely clear on the legal ramifications of reusing content posted on Instagram.  Others are under the misapprehension that when a user posts digital content on the platform, the user is automatically authorizing members of the public to freely use that content in an unrestricted manner.  Or that one can avoid a lawsuit by simply giving credit to the content creator.  Although the practice of reusing another’s content has almost become a norm, it does not mean that it is always legal.  In fact, many people and companies are using Instagram content unlawfully without even knowing it.

This month, Groupon was hit with a class action lawsuit from over 1,000 Instagram users claiming that the company violated their right of publicity.  These users assert that Groupon lifted pictures from their Instagram accounts without permission and used the content on the Groupon website to promote deal offers.  The named plaintiff claims she posted on Instagram a photograph of herself at a restaurant, and that while she did not even have an account with Groupon, her photograph was found on Groupon’s website advertising a promotion for the restaurant.  In most states, posting an image of someone without consent for commercial purposes will violate a statutory right of publicity.

Using the content of an Instagram user’s post without consent, and absent a valid fair use defense, may also violate federal copyright law.  This includes cases in which a company reposts fan photos or uses other digital content, even for non-commercial purposes.  Copyrighted content is not limited to photographs.  Videos, memes, and quotes from copyrighted works are other forms of protectable work under U.S. copyright law.  Even the re-use of a post with your favorite Ernest Hemingway quote could be a violation, depending on how it is used.

And it does not matter if the content goes viral and many others are posting it.  Most of those other posters may be individuals whom the copyright owner is disinclined to challenge.  But if you are a company exploiting copyrighted content for commercial gain, you may find yourself in the cross-hairs of a lawsuit for infringement.  Adding the #regram hashtag with the creator’s user handle will not save you here, and neither will the Regram App.  Also, even if a user tags your company in their Instagram post or uses your company’s brand hashtag, it does not necessarily mean you are authorized to repost it to your company’s account.

Instagram does not authorize re-posting or re-use by other users within the Instagram platform or outside of the service.  Instagram’s Terms of Use prohibit the posting of infringing content via the Service; by signing up as an Instagram user, the user agrees to comply with the applicable copyright laws.

Fair use, however, is a defense to copyright infringement that plays an important role here.  Fair use cases often focus on whether the new use of the copyrighted work was “transformative.”  A famous player in this area, not just for the fair use defense to copyright infringement, but also for Instagram, is Richard Prince.  In December 2015, famous photographer Donald Graham sued Richard Prince (an “appropriation artist”) for copyright infringement of a Graham photograph that was displayed on Instagram.  Prince used the image of the Instagram post, including the Instagram border, he modified the “comments” section, and then he offered it for sale at a NYC gallery as his own piece of art.  Graham is suing Prince for copyright infringement.  At issue is whether Prince’s work constitutes fair use of Graham’s copyrighted photograph, which may hinge on whether his Instagram comments qualify as sufficiently significant commentary to make it transformative.

As we await the outcomes of the Groupon and Prince cases, one thing is clear: to avoid a legal battle, think carefully before you post and re-post; obtain consent when posting someone else’s likeness or his or her content.