Sharing is great for outdoor industry marketing plans and feeds our social media hungry society. It’s what keeps people happily scrolling up and down their mobile screen. While sharing is what you want everyone to do, there are some guidelines and legal considerations in doing so on Instagram.
You and your, employees, customers, champions, supporters, evangelists, ambassadors, heck maybe even your mother are taking photos and videos of your product and sharing them on Instagram. These photos are being posted to your personal account, your company account and other accounts. Not only are you sharing what you create, but you are sharing what others create.
Instagram Terms of Service
Previous terms of service (TOS) posted by Instagram were not always clear as to the do’s and don’ts of sharing (Regramming which means sharing photos on Instagram.) images on its platform. Although at one point a version of their TOS a statement that said sharing content other than your own was a violation of the platform’s terms. This meant regramming was a violation.
Fortunately, Instagram has updated its TOS to clearly state that you as the account holder are responsible for any content you post on Instagram. Sections 7 and 8 speak directly to the types of content you’re responsible for. You can read the most current version of Instagram’s terms here.
In plain English, the platform clearly states that you are responsible for the proper use of any content you share on the platform. If you use content you didn’t create, you’re responsible for ensuring you have the appropriate permission to use that content on your profile.
This means that if you have permission from the original content creator, you may share it and Instagram has no concern with what you’re posting and you won’t risk your account being in violation of their TOS.
When do you need permission to post others content?
Although I am presenting information about regramming content on Instagram, the points I am presenting will generally apply to all social media or content resharing in any capacity.
When considering the issue of when do you need permission, it is important to start with "you must obtain the permission of content that is copyrighted." Copyright ownership means in the purest terms, that the person who creates the work owns the copyright. This means the creator owns the right to any revenue or benefits afforded by that content. As a brand or business, this can be used against you legally if you don’t have the license to use the copyright protection from the original post creator. Minimum damages for violation of someone's copyright is $750.00.
For example, if you shared someone’s post that displayed your product, and in that post caption, you advertised a sale or made a comment that the product is available on your website, legally the profit generated from the post can be attributed to that content. If you don’t have permission to use that content, the original post creator could sue you for that corresponding profit, plust their costs and attorney fees.
This is a worst-case scenario and most people would never go to those lengths. But it can, and does, happen. Most of the time, though, if you infringe on someone’s copyright, you may simply receive a request to remove the content or even a cease and desist order. Either way, you can avoid these situations if you take the proper steps to protect yourself.
How can you get permission?
Let's begin by clarifying there are two types of consent: implied and explicit. Implied consent is when users post content with the expectation that it may be regrammed.
There are companies who love sharing content and they simply ask the you use a specific # that includes their company name or unique descriptor with the #.
For instance, Mountainsmith uses #ForgedForLife as a unique branded hashtag to identify their products being used in conjunction with a specific brand campaign. The company may specify in the campaign details that using this hashtag may get the post featured on their Instagram account. It is generally accepted that posting using a hashtag is granting that site implied consent to use their image on that specific account. Although this is generally accepted in the industry, there is no legal allowance along these lines. Legally you will still need to have express consent to regramming.
Of course, the challenge with implied consent is that it’s not a formal release of copyright or permission to use the content. While you may typically be safe from legal exposure when relying on implied consent walking into a courtroom relying on implied consent is a weak case. The best type of consent is explicit consent.
Explicit consent is where the original content creator gives you direct permission to repost their content on your Instagram account. You can get this written permission in a variety of ways. There are a couple of ways you can seek to get explicit consent. They are:
- Asking the individual by posting a comment on the content's original post
- Asking by sending the content creator a direct message
Use the comment section on a original post to ask
On each Instagram post, there is the comment icon. You can click on the comment icon and post your request. You could always use something like, "love the photo. May I repost this to my account, xyz account, etc."
If you get the permission you seek, you are good to go.
Once the original user has given you permission to use their post, you’re free to regram it to your account. You must do so within any guidelines or requirements the copyright owner has requested. If the copyright owner says, yes you may use, but only if you use the #mystuff, you must use the hashtag when you use the content.
Send a direct message to the creator of the content
So you are not so comfortable asking for permission in a public manner. In that case, you could send the individual a request on the Instagram platform using the direct message feature.
To ensure there’s no confusion about the image you’re asking to use, send the image directly to the user as the direct message. To do this, go to the post on their account and tap the direct message button (the icon that looks like a paper plane). Then type in the name of the account (yes, you’re sending them their own post) and write your short message asking for permission to use the post.
Once the original user has responded to your direct message and given you permission to use their content, you’re free to regram it to your account.
Working with influencers or brand ambassadors?
Make sure you include a waiver provision for sharing permission in your contract with the ambassadors or influencers. (Always include a taxation clause and a not covered by worker's compensation clause also.) State laws that affect the relationship between a manufacturer and a commissioned independent sales representative.
When you team up with a brand ambassador or influencer to specifically create content that showcases your brand, the expectation is that you’ll use the content on your account. If this isn’t spelled out in a contract, however, the same copyright laws protect the original content creator.
Whenever you work with another person directly to create content that you’ll want to repurpose, be sure to include copyright clauses stating you own the copyright because it was work for hire or you are receiving a license to sue the content in your contract with them.
How do you regram the content?
There are numerous tools you can use to efficiently manage regramming content. To start with, Instagram has its own tool. There is a Repost for Instagram App you can download. It's the most used tool to regram. The Repost for Instagram app adds the creator’s Instagram handle to the image you’re resharing.
The benefit of using this app is that it will add a watermark to the image with the original post creator’s Instagram username. This makes it clear that the content is regrammed and provides attribution to the original creator. You should also include the original creator’s username in your post caption to give them attribution.
Use social media sharing tools
Digital marketing platforms like HubSpot have a social media management tool you can use to schedule and post content. There are also separate social media management tools you can use like Buffer, Hootsuite, Tailwind and Iconosquare.
If you need a written permission form or need a provision for your contracts to obtain a waiver for your use of the images an influencer or brand ambassador may create using your products, you can click here (your publishing site).
Check out the Guide to Digital Marketing for the Outdoor Industry.
This article was co-written with James H. Moss J.D., Recreation Law. Jim has been recognized as the "go to lawyer" by the Outdoor Recreation Industry. He has been known to don a toga at a show party and he learns from what he observes on the show floor. He was featured in the 35th anniversary issue of Outdoor Retailer magazine. Learn more about Jim by listening to this podcast with Rick Saez on Outdoor Biz.