If you post photos to Instagram and someone uses them using the option to insert a post , is it copyright infringing or not? Well, even though you might think no, the truth is that after a court ruling it is no longer so clear.
Instagram and copyright
Ars Technica has published a striking article that includes what happened between Newsweek and photographer Elliot McGucken . He took a picture of the Death Valley lake, which is normally always dry. On that occasion, due to the heavy rains, he had a large amount of water and that caught Newsweek’s attention.
The publication contacted the photographer to license the image and be able to include it in a publication on their website, but McGucken’s response was negative. Something that is understood because it sells its images on its website . Therefore, with Elliot’s response, Newsweek’s solution to using it was to resort to the insert image option that Instagram offers.
So far nothing would have happened if it were not because the photographer sued alleging that he had not given any permission for use in Newsweek and a judge agreed. Therefore, Newsweek should remove such publication. Something strange, because a similar case already happened between Mashable and another photographer, but this time the outcome was the opposite and the publication was able to use said API to share the image.
At that time the argument that seemed to allow the use of the image was that Instagram obtained a sublicense to be able to take the images to other platforms. But it seems that it really is not. As the Instagram itself seems to have confirmed Ars Technica through an email, they offer the user the possibility of inserting their images in other media , but they do not give any kind of sublilence so that anyone can take said code and use it in any medium. .
Strange, right? The truth is that yes. If we review most of the information published in this regard, everything seems to indicate that downloading and uploading it to another server without the consent of the car does indeed infringe copyright, but using the API that allows inserting them shouldn’t. Because at the end of the day the author is clearly visible, he is recognized and the image remains on the Instagram servers.
Therefore, Instagram is going to have or should clarify its conditions of use in the same way that lately it did the same with the subject of commercial music, which can be uploaded or reproduced in stories, feed publications or IGTV. Because inserting an IG post is so common that, if they really want to protect their users, they will need to clarify everything.
Of course, the simplest solution would be to add a new option that, without having to make the profile private, does allow you to deactivate the insert option. It would be something similar to what Twitter offers to decide who will or cannot reply to a tweet.
