With an estimated 2.6 billion people using social media and around 95 million photos uploaded to platforms like Instagram every day, how many of these people are aware of the legal implications of their online posting on their copyright rights?

Who has copyright in a photo?

In Australia copyright is governed by the Copyright Act 1968 (Cth). You don’t have to apply for copyright; it’s free and applies immediately after you take a photo.

Under the Act, the copyright of a photo remains with the person who took the photo and not the person in the image – although this does not apply where a person has commissioned a photographer (e.g. for wedding photos).

Social media platform terms and conditions

So, what about when you post the photo that you took on social media?

When you create a social media account, you create a contractual relationship with the social media platform which involves you agreeing to a certain set of terms and conditions. Most platforms, such as Instagram, follow a similar format in these terms and conditions which allow you to retain the copyright of the photo. However, the catch is that you grant the platform a non-exclusive, royalty-free licence to use your photo for free and may also give third parties a licence to use the photo. This may mean, for instance, that Instagram can reuse the images in their own advertising and even give permission for another company to use the photos. This only becomes copyright infringement when the third-party individual or company uses the photo without your permission or permission from the social media platform.

What to do if you feel your photo has been wrongly used?

Even though you retain your rights when uploading your photos to social media, you still run a large risk of having your rights compromised due to the accessibility of such platforms. It’s extremely easy for people to access, download and save your photos from public sites, and potentially use and share these images without your knowledge or consent.

If you feel that your rights have been infringed, the following steps should be taken:

• Check the terms and conditions of the platform through which you posted the image, and see if you have consented to the use of the photo.
• If you have not consented, report the copyright infringement to the social media platform. Instagram and Facebook both have online forms you can fill in to make a report if you think someone has infringed your rights.
• Contact the person or company that has used your photo and ask them to remove it.
• Seek legal advice to see what action, if any, you can take to enforce your rights.

Even if your rights have been infringed, your rights may be difficult to enforce. This is due to the sheer volume of users on social media platforms, which results in photos being shared millions of times across the globe. It could be rather difficult, time consuming and costly to track down every single user that shared or used the photo and take action against each one.

Tips for protecting your photos

To help avoid having your rights being compromised, here a few tips to protect your photos:

• Ensure that your privacy settings are on;
• Place a watermark or copyright symbol on your photos;
• Have easily accessible contact details so people can ask you for permission to use the photos (i.e. put your email in your Instagram bio).
• If you’re looking to use someone else’s image, ensure you request their consent first too!

By Micaela Hanlon