Instagram Content Monetization and Copyright Enforcement

Instagram is a photo and video sharing application with social networking service that also allows users to upload media that can be edited with filters and organized by hashtags and geographical tagging. Instagram is used by more than 1 billion users every month. The app is the second most downloaded free app in the AppStore. Thanks to such a number of users, almost any advertiser can find its target audience on Instagram.

There are five ad formats available on Instagram: ads with photos; ads with videos; ads with a gallery ring; a selection (the ad has a main photo and a carousel with the advertised items below it); and ads in Stories.

A large number of instructions on the Internet teach how to promote a personal brand or blog on Instagram and set up ads on Instagram.

Every day, millions of users post thousands of publications on the social network, interacting and leaving comments and liking. The content that users publish is diverse. On Instagram, there is a variety of photos, videos, collages and more. However, in the diversity presented, it is not uncommon to find the posts of the same type. Often, the posts are reposted, third-party photos are posted, and uploaded videos are ubiquitous with popular music.

However, Instagram strictly enforces users’ intellectual property rights in posts. Copyright infringement is one of the frequent reasons for social network blocking and other sanctions that have been imposed.

This includes not only the use of other people’s photos or videos, but also the public use of other companies’ brands.

According to the Instagram Community Guidelines,[1] user should only post photos or videos that the user has personally taken and therefore owns the right to them, or the right to share: “As always, you own the content you post on Instagram. Remember to post authentic content, and don’t post anything you’ve copied or collected from the Internet that you don’t have the right to post. Overstepping these boundaries may result in deleted content, disabled accounts, or other restrictions.”

According to Instagram’s Terms of Use and Community Guidelines, the best way to help make sure that what you post to Instagram doesn't violate copyright law is to only post content that you've created yourself.

It is possible to violate someone’s copyright by posting to Instagram, even if you:

• Bought or downloaded the content (example: a song from iTunes);
• Recorded the content onto your own recording device (examples: a song playing in the background during a party, concert, sporting event, wedding, etc.);
• Gave credit to the copyright owner;
• Included a disclaimer that you didn’t intend to infringe copyright;
• Didn’t intend to profit from it;
• Modified the work or added your own original material to it;
• Found the content available on the internet;
• Saw that others posted the same content as well;
• Think that the use is a fair use [2].

In these cases, such publications are subject to sanctions by the Instagram administration. Sometimes, the publisher may also face legal action initiated by the affected author. Let’s look at some examples.

As of July 1, 2018, E.S. Terekhov., an individual entrepreneur, posted on his personal Instagram account (https://www.instagram.com/) a three-dimensional visualization of the design created with the help of 3ds Max software (link: https://www.instagram.com/p/Bkre4UR1S6O/?taken-by=terehoves). In September 2018, E.S. Terekhov became aware that the official website of the id32 interior design studio, https://www.id32.ru/, on its Portfolio page, in the article Project of an Apartment Building on Spartakovskaya Street

(https://www.id32.ru/%D0%BF%D0%BE%D1%80%D1%82%D1%84%D0%BE%D0%BB%D0B8%D0%BE/) posted 4 photos of three-dimensional renderings of work similar to the work created by the plaintiff.

According to the appeals court’s decision, 150,000 rubles was recovered in favor of the claimer as compensation (Decision of the Twentieth Arbitration Court of Appeal of August 1, 2019 No. 20AP-3035/2019 in case No. A09-12945/2018, upheld by decision of the Court for Intellectual Rights on December 2, 2019).

Masterskie Zlatousta LLC (hereinafter - the claimer) on 20.06.2019 appealed to the Arbitration Court of the Chelyabinsk region with a statement of claim to individual entrepreneur Kuznetsov Dmitry Valerievich (hereinafter - the defendant, Kuznetsov D.V.) with a claim for compensation for illegal use of copyright items in the amount of 400 000 rubles.

In accordance with the decision of the court of first instance, the claims were satisfied. D.V. Kuznetsov, an individual entrepreneur, was ordered to pay Masterskie Zlatousta LLC compensation for illegal use of copyrights in the amount of 400,000 rubles and 11,000 rubles for the payment of state duty.

The claimer submitted a protocol of notarial examination of the website https://instagram.com/goldenhousevip (series 74 AA N 4350733) (case record sheet 14, Bundle 1). The website https://instagram.com/goldenhousevip contains photographs of the images named above, as well as items of arts and crafts for sale, the copyrights to which belong to the claimer.

In order to identify the person who posted the photos on the resource above, as well as to collect and record evidence, on March 14, 2019, the claimer’s representative placed an order for arts and crafts items through the website https://instagram.com/goldenhousevip.

Subsequently, a manager who introduced himself as Dmitry Belov entered into correspondence with the claimer’s representative and sent official documents from horsegolden@mail.ru, as well as the Sales and Purchase Agreement, under which the seller was Kuznetsov D.V., photos and invoice No. 1010 dated March 18, 2019 (case record sheets 52-58, Bundle1).

According to Resolution of the 18^th Arbitration Court of Appeal of June 22, 2020 in case No. A76-21548/2019, the judgement of the Arbitration Court of the Chelyabinsk region of March 3, 2020 in case No. A76-21548/2019 was reconsidered as follows. The paragraphs 1 and 2 of the operative part are set out in the following wording:

“The claim of the Masterskie Zlatousta LLC shall be satisfied in part. It was decided to recover from an individual entrepreneur Kuznetsov Dmitry Valerievich (OGRNIP 418745600921918) in favor of the Masterskie Zlatousta LLC (OGRN 1057402533484) compensation for illegal use of copyright items in the amount of 100 000 (One hundred thousand) rubles and the cost of a state duty in the amount of 2 750 (Two thousand seven hundred and fifty) rubles.

Thus, by posting to Instagram posts that fully or partially contain third-party copyrighted items, the Instagram user has to expect that this will violate someone else’s copyrights, and, accordingly, it is quite realistic to get penalized for such actions, as the above current court practice confirms.

To avoid such situations, user has to try to publish only the material of which he or she is the author!