Photographers often have a hard enough time getting the proper credit and payment they deserve for the images they create. And now, Instagram is enabling brands to make money off your images without you ever even knowing it.
There are many Instagram apps out there that allow you to repost other's images. You simply point them at the image you want to repost, and they download it and open it in the Instagram app for you. Sometimes, they add a little icon with the original poster's handle in the bottom corner, but unless they do this or the account reposting the content mentions the original poster somehow, there's no way to know where it came from. Though this is obviously highly problematic for photographers, to my knowledge, Instagram has never made any effort to curtail these apps; after all, more content is good for them.
Where this becomes 50 times worse is when you add product tagging into the equation. Any company with an Instagram account that's gone through the Instagram business approval requirements can use product tagging, allowing them to link to products they sell on any Instagram post or story. Because Instagram doesn't do anything to stop reposting, instead of paying a photographer for product photos and the proper commercial licensing fee, that company can simply use a repost app, find a photo of the product, and tag it. If they don't tag the photographer, the photographer will never even know unless they randomly happen across the post.
That's exactly what happened to Andy Barnham. Luckily for him, he realized it because the repost app tagged him in the caption, which was left unchanged by the company when they posted the image.
The repost by the company. Notice how they're selling an almost $1,000 watch using an image they've paid nothing for. The company's name was redacted at the request of the photographer.
Said Barnham of finding his image being used to sell a product without his permission:
It's disappointing. Either I accept abuse will be undertaken by the ignorant or unreasonable, or I have to spend even more time monitoring for abuse — time I should be spending creating new work. This means any image can be abused and commercialized, which has wider ramifications for general users: would you be happy for your face to be featured by a brand for free? There are aligned interests using content they haven’t paid for, offered from creators, the majority of whom don’t know their rights. Instagram can also claim it’s not their direct responsibility, creating an even larger moral vacuum. Ultimately, none of this would be happening if Instagram didn’t exist, so I believe the buck should stop with them.
There are, of course, a multitude of reasons this could happen. It could be a social media intern who doesn't know about copyright and just searched the company hashtag until they found the right image. Or it could be something more sinister, a company knowingly trying to cut corners. What's worse is that photographers are particularly susceptible to this, since they're the most likely to be posting the sort of professional images companies would love to use to advertise. And since they're being reposted to Instagram, the companies won't care about the low resolution. They get free, professional product or commercial photos to sell their products. The photographer gets nothing in return. The photographer might not even know it's happening, particularly if it's an indirect usage. What if some lifestyle company uses a picture you took of a watch on a wrist? How would you ever know to suspect that?
What's frightening is how easily and efficiently this can happen: Search the hashtag. Scroll through a few dozens images until one is found that's suitable. Select it in the repost app. Post it and tag the product. All of this might take two or three minutes.
Of course, the photographer could potentially report the image to Instagram. But first, that's assuming they even find it. If the brand posting it doesn't tag the photographer's account (and if they're trying to pull a fast one, they certainly won't), there's a good chance the photographer will never even know what has happened. And if the photographer has a working relationship with that company or is hoping to, it instantly puts them in a very awkward position. Of course, if the post was made out of ignorance and the photographer has some tact and business savvy, they might be able to massage it into a working relationship, but they shouldn't be forced into that position in the first place. It's not right. Nor is it legal. And as Barnham said, it's a colossal waste of the photographer's time to have to be constantly policing brands for this sort of thing.
Really though, almost every brand that's bigger than the tiniest Etsy shop should know better. They know advertising materials aren't free. They understand that making money off of someone else's work without compensating them isn't right or legal. Maybe that social media intern running the company's Instagram account doesn't know better, but then, the onus is on the company to educate them before they hand over the reins to something that is directly tied to them making money.
But at the end of the day, it really doesn't matter all that much if this happens because of ignorance or malice. The photographer still loses money either way — money that is rightfully theirs. And because Instagram seems content to allow reposting, they're not only allowing the behavior, but in the eyes of that intern who doesn't know better, it might even seem they're encouraging it. After all, our minds often use the heuristic of assuming something that's easy is the correct method. And this is tremendously easy to do.
My thanks to Andy Barnham for sharing his story with me. You can see more of his work on his website and his Instagram. You can also read his thoughts on this subject on his blog. One final note: Barnham was kind enough to share that screenshot with me on the condition that I censor the brand name, so please avoid attempting to track them down.
Lead image by Lisa Fotios, used under Creative Commons.
Interesting article Alex. As a photo enthusiast / hobbyist who's relatively new to IG, I agree that the moral onus is upon the person reposting the image, however, IG is in a unique position to be able to physically control this practice on their platform. I'm curious whether watermarking photos on IG posts would deter brands from reposting work or at least make it more evident when brands actually take a photo. Granted the original creator of the content may still not be aware of its use, however, at least it's a bit more evident as to who the creator was, and if the party reposting the image was to ever alter the photo so as to remove the watermark - dubious intent would pretty much be self-evident.
Just my random ramblings. Sounds like there's really no perfect solution at the end of the day unless IG steps up...
Scott
watermarking seems to do very little, I have a buddy whos shots get reposted all the time w/o tag and cropped out watermark
Happens to me as well. How large do I have to make a watermark before it's taken seriously? Large enough to completely ruin the image, I would guess.
Unfortunately I agree, watermarking in my experience does little. As Carl's mentioned, there's a balance when it comes to the size between image protection and ruining the image. I've found if someone wants to take/ use an image, it doesn't matter if it's watermarked or not. Worse case scenario is an image is cropped to remove the watermark which also ruins the composition of the image.
There seems to be no way to stop it. I wish I could monetize it? Pixy doesnt work
This is why https://binded.com/ is something every photographer should be using. Any image I have on instagram shows up in my vault as well as any of the same images that have been reposted and who did it.
Nearly every link on that page leads to "not found" (support, features, FAQ etc.)
Alex, thanks for writing this piece as I think it's an important issue to stay on top of. That being said, there's something else about the article (and others like it) that bothers me: the part that's missing. What did the photographer *actually* do about it?
There are several "mights" and "could do's", as well as thoughts on the amount of time that's wasted tracking this stuff down, but I think every time there's an article about this it needs to go a step further: What did the photographer *actually* do in response? Even if they did nothing, it still needs to be said.
I don't think it's enough to just keep writing about the fact that this is an issue anymore; everybody knows it is. I understand that this particular piece was about a specific way an image was used without permission, but if anything is going to be done about it people need to know what their options are. Was there a follow-up with the company that resulted in any sort of response? If so, what was it? If not, why not? "Doing nothing" shouldn't be a viable choice anymore, even if it's something we "shouldn't have to do". The only way anything is going to change is if people start taking action. I'm not suggesting that whatever action he could have taken in this particular case would have made an immediate difference, but in order for anything to change people at least need to know what works and what doesn't. The only way that's going to happen is if people write about it and share their experiences.
For example, he may have *said* that he did nothing, but that image doesn't appear to be on his Instagram anymore either. Was that done to further conceal the identity of the company involved? Or did he take it down in an attempt to prevent the company from using it further?
I think in the future these details are going to be just as important, if not more so, than reporting on the practice itself. Just my two cents.
Hi Dave,
Following up to your message;
1. The image was taken off my IG to help prevent the identify of the company involved.
2. In this instance I requested the company cease and decist.
3. Options (unfortunately this year I’ve dealt with copyright issues, both actual and potential, of over £100k); I suggest the first thing is recognising a bad client and avoiding them. If the abuse has happened, my opener is to request from the brand proof they have a licence or permission for the use. You then need to decide how litigious you want to be; it can be as easy as a cease and take down, all the way to damages, percentage of profits and if you can prove flagrant abuse a potential prison sentence.
However this is where, from experience, you’ll start to run into potential poor behaviour. Reasonable and honourable people will agree to reasonable terms. Unreasonable people won’t and you need to decide how much time, effort and money you want to spend. I had to walk away from an infringement as the brand involved was a deep pocketed luxury brand who didn’t care and would have outspent me in lawyers fees. I certainly encourage all photographers to know their rights and to stand up for them. However I also believe in picking your fights and knowing when to back down; it can be hard to be dispassionate about one’s work but worrying about copyright abuse can be hugely stressful. The best way to avoid all of this is (as mentioned) don’t work with potentially bad clients. Also ensure your contract and Terms and Conditions are as laid out as best as possible. People who behave poorly in life behave poorly in litigation, but try to reduce this by having clearly defined terms.
I hope this helps.
Hi Andy,
Thanks so much for taking the time to reply. This is exactly the kind of response people need to see. I think a lot of times, especially for amateurs and those who are dealing with this for the first time, people don't know what to do and just let it go. But I don't think they let it go because they don't care enough, I think it's because they assume that they have no recourse compared to somebody who's more "legitimate". Often there's an assumption that if you're a professional, you're part of this larger community of professionals that all look out for each other, or have resources for dealing with this stuff. Not only is that not always the case, but for this issue I don't believe there is a separation between amateur and professional; it's all copyright infringement and everybody has the same rights. I'd like to see more amateurs taking steps to protect their work, but I think for them to do that requires more people to step up and share what happens after the infraction. So, thank you.
I've run into similar issues recently, although my situation is hard for a different reason: the stuff I post on Instagram is mostly landscape shots from around my city, not my portrait or commercial work. I get a lot of small businesses (and hotels especially) using those images without permission because showcasing the city helps them. I think it's harder for them to recognize what constitutes copyrighted work when the stuff I'm posting isn't a product or for a specific business. Typically I try to give the benefit of doubt and simply let them know that I don't allow businesses to use my work for free, and I've gotten a variety of responses, from deleting the image, to apologizing, to not doing anything and not responding. Recently an organization that markets the city itself used an image from Instagram across multiple platforms, which to me showed more intent than simply sharing within the same platform. I certainly wasn't going to send them a message on multiple platforms so instead I looked up their marketing dept and sent them a very nicely worded email explaining the issue, and attached an invoice. They immediately took the image down but never bothered to reply one way or the other. So much for professionalism; when I had an office job I was accountable for replying to emails. Apparently these guys, not so much. So I consider it to still be an open case; I'll follow up with them regarding the invoice soon. It's probably not worth taking them to court over, but hopefully the invoice communicated the severity of their transgression and they'll think twice next time. We'll see.
Anyway, my overall point is, I think the more open people are about how they deal with this issue, the easier it will be for others to do the same. And that will help everyone.
Hey Dave,
My pleasure to help as I believe we're stronger as a community and if we all stand up for our rights, photography IP will become better known. As you've said, we all have the same rights, pro or hobbyist and it's important we all know what they are. Your points about being a professional and potentially having resources is what I call 'The Business of Photography'; knowing your rights, about usage, releases etc etc... which your average hobbyist doesn't have a clue about and which often lead to professionals being undercut.
To expand on follow up action, and also use your experiences as an example; I was advised whatever you do, you need to be consistent. Should you have to go before a judge it's important that you have a precedent in your dealings, from how you approach an infringer, and especially in regards to how you calculate your invoice/ usage fee. In order to maximise your chance of success you need to show you have a consistent history with your infringement dealings. So while you need to pick your fights and who you chase down, there's also a need to be consistent in who you chase and how/ why. Make sure everything is noted down and you have proof; ie it's time consuming, but note down all salient points after a phone call. Also, do not agree to come to terms over a drink; it's unenforceable and they can claim to recall a different version of events after the fact. Always start out with a formal letter/ email to show you're serious.
Good luck!
Doesn't that work both ways ? If you are a professional Photographer who shoots a company's product and now uses that shot to promote your portfolio and business, shouldn't you also be paying the company a use fee for their product ?
Hey Peter,
Copyright laws states the image belongs to the creator at the point of creation. However you make a good point and indeed I’m very careful as to how and where I allow my images to be used and seen especially if there’s a model or location release involved; to date I have never come across a release form for a product or anyone trying to enforce it. Coming back to your point, apart from being accepted common practice, my Terms & Conditions explicitly state my work will be used to show and promote my business. Being able to show and promote my work is a central pillar to trying to generate new business. I will agree to new work if this clause isn’t agreed to, only in exceptional circumstances.
In this instance the image was for editorial purposes, so I was paid by a magazine and not by the watch company.
I had this issue with Overtone hair color. I had my lawyer contact them, they settled.
I posted this to the Fstoppers page the other week ... here are two sites where companies are stripping Instagram content and offering it up for free use to anyone. My images appeared on both of them, no permission asked for or given, and quite a few of my photography friends also had their Instagram images posted to these sites.
Yooying.com
jestpic.com
Instagram doesn't seem to care that content is effectively being stolen, and the sites in question (and who know how many others like them) basically infer that because they're an 'authorized third-party website' - authorized by Instagram - they're 'allowed' to offer your images for free.
Check them out, punch your Instagram handle into their search bar and find out if *your* images have been stolen