BY HEMMA VARA

Instagram is a popular mobile application, infamous for its digital filters with alluring names (think Valencia & Amaro), and the use of the hashtag symbol (#). Instagram allows users to upload pictures or videos colloquially known as “grams”, which can then shared with their Instagram followers and on other social media platforms.

The term “re-gram” has been coined, describing the process whereby an existing gram is copied from one user and reproduced on another’s profile. The reproduction is typically achieved by either a specifically designed application or simply by taking a screenshot of the original gram on a smartphone. In practice this means that  humorous or memorable grams will go viral, spreading to other social media platforms such as Facebook and Pinterest. The spread of certain grams can be accelerated by the use of the hashtag; a user can search for grams based on a particular theme by looking up a corresponding hashtag. And if they like what they see, they may feel compelled to re-gram.

With thousands of grams being uploaded to Instagram every second, the question arises as to who owns them. According to Instagram’s Terms of Use, users represent and warrant that they own the content posted, or that they have the right to post such content. They further represent and warrant that the content posted does not violate, misappropriate or infringe on the rights of third parties, which include but are not limited to privacy, copyright, trade mark, and other intellectual property rights. As a side note, while Instagram does not claim ownership over content, the Terms of Use state that users grant Instagram a non-exclusive and worldwide licence to use their content.

I can feel it #LA #california #streetphotography #summeradventures #contemporaryphotography #2015copyleft #creativecommons

A photo posted by Hanna Quevedo (@hannaquevedophoto) on


One of the problems regarding copyright ownership is that users, including businesses and celebrities, will often re-gram photos without any consideration for the copyright implications. This is certainly not a socially responsible practice, and it is this blissful ignorance that has led to parties being caught out for using other people’s grams. Further, it is also common for media to be re-grammed multiple times to the point where the original source can not be located, and even then, crediting a source in itself is not a defence to copyright infringement. Interestingly, in the United Kingdom, the Enterprise and Regulatory Reform Act 2013 provides a solution to this. It allows a person to use a copyrighted work for free without the consent of the owner if, after a “diligent search” in accordance with the prescribed regulations, the owner cannot be found.

A solution to the danger of the re-gram — and one that all users can benefit from — is Creative Commons licensing. There are a variety of licences available to users; all require attribution and some are for non-commercial use only.  Users can manually add a CC licence in their Instagram profile description or in the caption of a gram. They can also follow this up by hashtagging “creative commons”, thereby enabling other users to search for openly licensed media.

Instagram does not currently facilitate a platform for users to license their grams with ease, but there are other ways of doing this. For example, Instagram allows users to directly share photos to their Flickr accounts and, in turn, Flickr allows its users to choose a particular CC licence under which they can share their photos. Flickr also enables users to search for photos that have been published online under the different CC licences.

Another example is  i-am-cc.org, a third-party archive that allows users to CC-license photos for three months from the date they sign up to the archive. i-am-cc.org’s manifesto explains that the three-month period is imposed as people may forget what they signed up for, and i-am-cc endeavours to be a “legitimate repository of free images”. There are also a variety of websites supplying CC-licensed images for the public that instagrammers may re-use.

It is clear that the re-gram is something that Instagram users should adopt with caution. The use of CC licensing is an excellent mechanism to lawfully perpetuate media, and, the more users who opt in, the more media they have to benefit from. It is yet to be seen whether Instagram will allow users to opt into CC licensing their grams. This may be a smart move, and the issue may become more prominent as more parties are caught out for irresponsible re-grams.

Hemma Vara is a young professional and avid fashionista who resides in Wellington.

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