FAIR USE ON INSTAGRAM

• Author: LEOW Wei Xiang Joel Dip (Law and Management) (Temasek Polytechnic), LLB (Hons) (National University of Singapore); Practice Trainee, Dentons Rodyk & Davidson LLP.
• Publication year: 2019
• Published date: 01 December 2019
• Date: 01 December 2019

I. Introduction

1 Courts around the world have noted the phenomenon of the rise of social media in providing immediate, easy access, and widespread dissemination of digitalised content online.1 Against this backdrop is a group of innocent private social media “infringers” who are generally

unaware that their acts of sharing and spreading digitalised content online could amount to copyright infringement, particularly in Singapore, if they were not the copyright owners of these digitalised content.2 What is problematic is that copyright law was not created with these kinds of content in mind, so these behaviours by masses of ordinary users are out of line with the letter and expectations of the law.

2 Part II3 of this article explores users' behaviours on popular social media site Instagram4 and how their actions onsite could easily and dangerously be labelled as “copyright infringement”. Part III5 discusses the current law on fair dealing6 under s 35(2) of the Singapore Copyright Act,7 following which Part IV8 illustrates how the defence does not adequately protect the private users on Instagram. Part V9 considers the possibility of introducing a user-generated content (“UGC”) statutory exception, but Part VI10 concludes that a better solution is to remove the fifth factor from the fair use test to afford adequate protection to UGC generated by private individuals and keep the protection limited to a case-by-case basis for celebrities and business users seeking to commercially exploit original copyrighted works on Instagram.

II. Social media phenomenon

A. Rise of social media

3 The Internet has transformed the way we communicate – the prompt, accurate and inexpensive distribution of digital information means that anyone can receive or disseminate digitalised content at the touch of a button. While it took traditional media – such as radio and television – more than a decade to reach 50 million users, it took Instagram just six years to reach 500 million users.11

4 There are currently about 1.9 million Instagram users (“Instagrammers”) in Singapore.12

B. Instagram

5 Instagram has been selected for analysis in this article because of its distinctiveness from other social media sites, in that each post must include an image or a short video – Instagram was created to allow social networking through the sharing and viewing of photographs.13 Surveys have shown that Instagram's popularity is due mainly to the greater ease and efficiency in browsing friends' photos compared to reading their posts on other sites such as Facebook.14 As an application on the smartphone, Instagram's increasing popularity is also due to the increasing ownership of smartphones,15 especially when the smartphone's features complement the usage of Instagram – the camera, the touch screen and the web connection are used to capture, manipulate and upload images by pointing, tapping, cropping, filtering and swiping.16 With the increased ownership of smartphones and ease of uploading images, Instagram is one social networking site with a substantial amount of copyright-infringing UGC.

6 As Corinne Tan puts it, there are several features of Instagram which “nudge” Instagrammers to engage in activities generating more UGC.17 The three UGC-generative activities are, broadly, creation, modification and dissemination of UGC. Instagrammers can easily create a new post by either uploading a picture (or video) that has already been stored in their smartphones, or by taking a new photo using the application itself. After choosing the photo they wish to upload, they will be prompted to modify the photo by choosing any filter and/or effect available on Instagram to be applied to the chosen photo. Once the modification selections are made, Instagrammers will disseminate the pictures by uploading them onto their accounts. The account could be set to “public” (instead of “private”) to reach a wider audience group, and hashtags could also be utilised to make the post visible on the corresponding hashtag page.18

7 For easy reference, the author will use “UGC” in this article to refer to Instagram posts building upon or reproducing existing copyrighted works. The extent to which UGC must be original to attract copyright protection is a topic for discussion on another day.

C. Types of social media users on Instagram

8 Instagram consists of three broad categories of users. On the one hand are the private individuals who use Instagram for personal, private purposes and, on the other, the business users seeking to establish an online presence for brand building. Celebrities are arguably a hybrid of the two, using Instagram both for private purposes and to build their fan base.

(1) Private users

9 Private individuals usually use Instagram to document their lives and to gain knowledge about others. Much like the traditional way of capturing memories by taking photographs and then sharing these prints with family and friends, Instagram is the 21st-century tool employed to continue this innate social interaction since it primarily focuses on images.19 The pictures uploaded then allow others (friends,

family and even strangers) who are “following” the user to keep up with or gain knowledge about what the Instagrammer is doing.

10 As a visually based social networking site, Instagram also presents plenty of opportunities for users to demonstrate their creativity: from applying filters to make pictures appear “artsy”, to posting creative captions and hashtags, these features allow users to develop their creativity. The filters are easy to operate and enable users to produce images that seem to have been given a professional touch.20

11 By posting images, with captions and hashtags21 used as needed for context, private users use images as means of self-presentation and expression.22 This includes the conveying of emotions, sharing of individual aspirations (such as posting bridal images to express romance desired in the relationships of couples), and even posting images of branded cars to reflect fantasies of consumption.23 These posts then construct one's “virtual identity” – the identity constructed through the virtual space of social media24 – on Instagram.

12 Assuming that the original work is protected by copyright, private users are often unaware that by posting unauthorised photographs of copyrighted works, they are essentially disseminating and reproducing protected expressions without licence – a paradigm act of infringement.25

13 While Instagram is unlike Facebook where users can easily “share” another user's post containing copyright-infringing material,

the same can be achieved when Instagrammers “screenshot” the Instagram post, crop the copyright-infringing picture and post it on their account – as was done in Gattoni v Tibi, LLC,26 a case which will be discussed later.27 Like defamation, where each re-publication of the offensive post is actionable,28 each republication of the infringing post renders each user personally liable for copyright infringement.

(2) Business users

14 “Business users” is defined loosely to denote businesses which use Instagram to foster relationships with customers. This includes large corporations like Nike (whose account is managed under “@nike”) and Louis Vuitton (whose account is managed under “@louisvuitton”), or even smaller-scale sole proprietorships which rely on Instagram to establish online presence.

15 By uploading posts on Instagram, brand fans can interact with these brand posts by liking or commenting on them; businesses are then able to cultivate and develop brand loyalty when customers' impressions of the brand are positivised through such interactions.29

16 Business users could utilise aesthetically appealing copyrighted works without permission to make advertisements for their products, thus capturing Instagrammers' attention and positivising their attitude towards the brand.30 Alternatively, businesses could post unauthorised copyrighted (brand-unrelated) images to show more authentically human involvement, demystifying the brand image to enhance users' perceptions of brand personality and ultimately motivating Instagrammers to consume their products.31

(3) Celebrities

17 This category consists of both traditional and “non-traditional”/“Instafamous” celebrities; the former includes our typical actors, and the latter, individuals who become famous through online media usage and are known by more people than merely their friends (sometimes known as social media influencers).32 Studies have shown that “Instafamous” celebrities are perceived as knowledgeable and credible and have the capability to significantly shift the public conversation about products and services that are promoted through traditional channels.33

18 Like business users seeking to build online presence, celebrities (especially ordinary individuals trying to become “Instafamous”) could try to populate their pages by sharing unauthorised copyrighted works on their Instagram accounts. As the number of their Instagram followers increases, these celebrities are then approached to use their Instagram accounts to add value to brand names by endorsing and advertising products or service offerings. This becomes a vicious cycle for the Instafamous celebrities, who continue to try means and ways, including possibly posting more unauthorised copyrighted work, to gain more followers for bigger and better sponsorships.34

19 These endorsements and advertisements (which could also be “camouflaged” as positive reviews) of brand products then become “electronic word-of-mouth commutation”, allowing businesses to ride on the popularity of celebrities on Instagram to persuade and influence users to consume their products.

20 Celebrities belong to a hybrid category – like private individuals, they may genuinely be engaging in self-expressive conduct on Instagram when they post copyrighted work. This article, however...