Who owns all of the images on social media? All those holiday snaps, happy family memories and eyewitness videos of crazy happenings and crimes that are uploaded daily... Do we still own the images we post on sites such as Facebook, Twitter, TikTok, YouTube, Instagram, LinkedIn and Snapchat?
Terms of service and images on social media
What if you find that an image you posted has been copied and used elsewhere? Perhaps someone is making money out of it, or has twisted it into something nasty, or photoshopped it, putting a face you posted onto another body.
Laws under the Copyright Act 1968 apply to the use of images on social media, just as they do to traditional media publications like books, films, newspapers or television.
Hardly anyone reads the fine print of the terms of service when they sign up to a social media platform, but you should know that you give up control of what happens to your images.
Most social media platforms say users retain rights to their original posts, but they take the right to do whatever they like with the images without paying for them.
For instance, Facebook (now Meta) states posters retain ownership of intellectual property rights, but Facebook takes "legal permission" to use posted content as it likes and for free.
Instagram and Facebook (now Meta) Terms of Service
Facebook terms state:
When you share, post, or upload content that is covered by intellectual property rights on or in connection with our Products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content.
This means, for example, that if you share a photo on Facebook, you give us permission to store, copy, and share it with others (again, consistent with your settings) such as Meta Products or service providers that support those products and services. This license will end when your content is deleted from our systems.
You give us permission to use your name and profile picture and information about actions you have taken on Facebook next to or in connection with ads, offers, and other sponsored or commercial content that we display across our Products, without any compensation to you.
Instagram says in its terms of service that it can use your photos for free, in any way it likes, and can sell the images or give permission to third parties to use your images around the world. You agree to those terms when you sign up for the platform.
When images on social media breach copyright law
Copyright law could be breached when someone other than the platform reposts your image without permission. The reposter risks facing legal action.
If a business or individual copied an image it found on social media, the owner of the image could seek compensation for losses they may have suffered as a result of the photos being used.
A Brisbane teenager found a photo of herself that she had posted to Instagram being used as a promotion by a clothing company and sought legal action for breach of copyright. (Please see Teenage Lorna Jane fan sues fitness label, 9news.com, 8 October 2015.)
Changing images on social media to avoid copyright
Some copying of social media photos has circumvented copyright laws by making small changes to the image, so it can be argued it is a new "creation".
An American artist who sold other people's Instagram images as art for $90,000 apiece ran into copyright problems. (Please see Judge refuses to toss two copyright infringement lawsuits against Richard Prince, The Art Newspaper, 16 May 2023.)
Copyright and photographs
It is best to ask for permission to use the image and give a credit to the image owner. If you don't know the originator of the image, it's best not to copy it.
Copyright protections are free and apply automatically as soon as the image is taken. You don't have to apply for copyright or register your photos.
Copyright rests with the person who took the image, not with the people in the image. This does not apply to a photographer engaged for a special purpose, such as a wedding, when copyright is held by the person who commissioned the photographs, unless there is an agreement with the photographer.
Anne-Marie Fahey
Intellectual property
Stacks Law Firm
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
