It’s a complicated question.
This past June, writer Arabelle Sicardi penned a piece for Jezebel detailing her Twilight Zone-ish experience seeing a photo she took with a friend and fellow artist re-appropriated, re-contextualized, and finally slapped on the pages of the New Yorker with the credit given to a “Yale bro” photographer, who highlighted the image at his MFA exhibition. Sicardi, perhaps counter-intuitively, had no recourse: the image, which had been altered somewhat from its original form, was protected by the “fair use” doctrine.
The piece is a good read, and while the issue may seem unique to our current hyper-sharing, hyper-shareable culture, “fair use” as a legal concept has been around for literally decades. One can sympathize with Sicardi’s plight, but generally fair use is a good thing – it allows artists to pick at and refine bits of the world they see around them, introducing their own ideas and making the old something new and, ideally, artistically worthy. (It is only through the fair use doctrine of parody that Weird Al Yankovic, for example, is able to share his gifts with the world.)
But what happens if the next person to appropriate your image or words does nothing to make it their own? What happens if they just take it – use it – and maybe even make some money off it? Sicardi doesn’t specify how the artist got her image, but the most likely way is through social media. Copyright law should ideally protect against the theft of intellectual property, things like photographs, words, and music, and make sure, subject to certain specific exceptions like fair use, that the only ones who can profit off intellectual property are the ones who own it. But is there an exception for the digital footprints most of us leave behind every day of our lives? Simply put, who owns our Instagrams?
Technically, we do: Instagram claims no ownership rights over the content posted by users. As the hyperlinked article points out, though, by using the Insta service users grant the company a fairly broad license to re-use the images, so long as they don’t directly profit from them (i.e., they can use them in advertising, but they technically can’t sell them). How big a deal is this distinction? Well, it depends on the user: some would argue that of course Instagram can use our photos to advertise itself. After all, the entire service is user-submitted photos: if it wanted to show itself in action, it would simply have to feature user photos. And it isn’t as though Instagram is attempting to sell some other good or service using your photo. If you take a picture of yourself drinking a Mountain Dew, Insta reserves no right to sell that to the Dew people. That said, you may see yourself on the Instagram front page at one point, smiling and advertising the service simply by using it. And that would be perfectly legal.
What about third parties? In our hypothetical, what if the Yale bro artist never altered the photo of Sicardi? Would this be legit? That’s a very very tough call, and it looks like courts are going to have to decide this question sooner rather than later. See, deep inside those Instagram terms and conditions is a line mandating that the user agree to allow others to “re-share” their content.
This is real lawyering time – what does it mean to “re-share”? Some “artists” are already deciding to push the term to its absolute limit, selling “artistically enhanced” screenshots of other people’s Instagrams for $100,000 each. This is NOT the sort of art Sicardi dealt with, mind you: at least in her case, the photo truly was altered and only its bare essence remained. The $100,000 dollar guy, though, is straight up just blowing screenshots into poster size and calling it a day.
Where creative minds come together
Copyright law is not common law. By that I mean, it doesn’t really exist independent of the rules, statutes, contracts, and terms and conditions that govern our behavior from day to day. Exhibits like the blown-up Instagrams challenge lawyers to ask what these textual sources really mean, and until courts begin answering that question conclusively, the answer is up for grabs. So maybe re-sharing means selling for tens of thousands of dollars, and maybe it simply means what we all think it means: #ReGram.
