“Thou Shalt not Steal” was a strong opinion held by the supreme court in the case of Grand Upright Music v. Warner Brothers, reflecting upon the the legitimacy of appropriating someone else’s work as yours, even with transformations. Though this strict approach stifles creative expression, nonetheless, there has to be a balance drawn between freedom of expression and rights of the artist. In today’s era of digitalisation, where everything is readily available, including copyrighted artistic works, the conscious or unintentional breach of copyright has increased drastically. Photographs also fall under the definition of artistic work.
Increasing popularity of social media for financial gains, especially that of Instagram has blurred the lines of copyright laws. The lack of awareness as to what amounts for infringement is majorly contributory in this case. When you click a picture and share it on Instagram, someone takes a screenshot of that picture and share it their accounts making it seem like theirs or you click some pictures in professional capacity for lets say, assigned photoshoots or as paparazzi or brand promotion photoshoots, and the model of your work then posts the same on their private account without giving any economic or moral credit to you. Would that amount to any copyright infringement?
My paper explores such copyright infringement of work appropriated by anyone other than the copyright holder, without authorisation, on Instagram and gaining economic benefits via same. This paper explores how the common act of ‘posting pictures clicked by other’ amounts to infringement, how terms and services can protect such infringement and how courts have reacted to such cases. This paper analyses the aforementioned issues from the lens of economic theories providing for an economic analysis of copyright laws while proposing an effective solution to this dilemma between freedom of expression and due credit of the artist.
1. Twin approach towards copyright infringement
1.1. Traditional Legal approach–
What works are copyrightable? Article 2 of Berne Convention defines literary and artistic work to be inclusive of any “photographic works to which are assimilated works expressed by a process analogous to photography”. There are basic two conditions for any work to be copyrightable; originality and fixation. Originality does not protect the idea however protects the expression of it. The presentation of the picture along with the interpretation provided by the artist, if any is unique and as soon as it is created, copyright gets attached to it without filing the same. Fixation is another important essential laid down in aforementioned Article 2, which means materialising the work, in case of photographs, storing it in form of negatives, digitally or materially. As photographs are artistic works in all major jurisdictions and pass the aforementioned test, thereby are copyrightable.
A copyright owner has certain basic rights common throughout diverse jurisdictions such as; reproduction of the work, communicating it to the public, transform or modify the work, gain economic benefits via making and distributing copies, receive royalties and right to destruction/mutilation or reforming the work. If one wishes to use such work produced by someone, one is required to seek authorisation or license from the creator and also pay economic benefits in form of royalties unless it can seek the shelter of fair use/fair dealing. The law allows and permits defence against copyright infringement in cases of appropriation for academia, review, critique or minimalistic use (too trivial for courts to consider).
Before proceeding, we need to define social media to see what laws can be applicable on it. Social media can be defined as a service provider profiting from imparting a platform to create, share, communicate and perform such familiar functions. This makes it a legal entity and therefore subject to national and international laws thereby creating a legal relation between the platform and user and also falling under the ambit of national copyright laws. To have a uniform regulatory body across jurisdictions, the national laws are made in coherence of TRIPS and Berne Convention, thereby the rights of author do not differ drastically across several jurisdictions, making it easier for Instagram like portals to manage activities setting general legal limits.
Since it is established that photographs are copyrightable and social media such as Instagram are legal entities thus subject to copyright laws, it is certain that they require to function in the ambit of the copyright laws. The intent of copyright laws was to create an incentive for artists to continue creating works. Those incentives are majorly monetary in nature however are also to provide due credit to the author. When it comes to economic rights, the author of the work has right to gain benefit via sale, communication to public and royalties. Royalties has different scopes in different jurisdictions. A work when copyrightable can be claimed by the right holder. The first copyright is in hands of the person who created the work, in the instance of photograph, it is the photographer, unless there is a contract to the contrary. The photographer thus has right to economic benefits from their work.
1.2. Economic Approach
Concerning the intellectual property rights like copyright, the simple economic tangent is “propertising”, to exceed the marginal cost. Posner rightly pointed out that IPRs are fairly costly to create and that cost of creation remains fixed, however owing to the technological advancements, the cost of providing the work to the public is not very high, thereby output cost is minimal as compared to fixed costs. Where the fixed cost is higher component of total cost, the marginal cost equivalent price would not suffice and a price higher than marginal cost will lead will affect the purchasers and leave gap for firms with low fixed costs to enter. However, the increase in marginal costs is necessary to recoup fixed costs. The system of financial rewards to only the author limited by IPR laws that restrict other to use your work without authorisation, was created. Other than the incentive effect, economic approach also analysis the breach of property rights. In the case at hand economic approach of property rights is required to be explored to apply economic theories to resolve the dispute at hand.
Cooter and Allen rightly said, “the society created property right to encourage production, discourage theft, and reduce the costs of protecting goods”.The idea of property is crucial to some and its not to others. The basic dispute is over the use of property mostly. Economic approach is used to find effective solution for such utilisation of property, benefitting both parties. Property creates a sense of privacy for the owner to exercise their own will. Dispute arise when the privacy is breaches due to unauthorised acts hence damaging the economic rights of the property owner. One theory to apply, is the Bargaining theory where the scope for bargain can achieve maximum profit to both parties. The only challenge is that the parties must agree on how to divide the cooperative surplus, which is the value created after moving the resource from seller to buyer. Where does the law come in then, when bargaining fails, law has to interfere and decide whether the interference with free enjoyment of privacy of own property was justified or not. Here the right should be allocated to the party who values it the most. It is generally successful when played by rules i.e. threat value is public to all parties. Transaction costs can be lowered when laws are laid down properly, there are fewer parties which are familiar with each other thus would have reasonable behaviour and losses are low.
Coase’s Theorem when plied in this case comes to mean that in case of transactions costs being equivalent to 0, private bargaining can result in efficient use of resources without assistance of property rights. As it cannot be 0 therefore rights have to allocated. This cannot be achieved therefore the normative Coase’s theorem would be to structure the law in a way that it assist private agreements, which is also what Hobbes Normative Theorem says. So we have two ways, either reduce transaction costs to lubricate private agreements or allocate the rights to the party that values it the most.
Considering the case at hand, if unlimited power is given to copyright holders, they will create a monopoly and manipulate the market for self interest. Therefore the law has provided for a tenure of copyright to limit the monopoly. Also copyright laws only protect expression and not the idea. The concern in the case of photographers is that their expression is copied with no transformation on Instagram by models or others, without providing Anu credit or incentive thereby dropping the market of the creator. As Instagram allowed other users to display copyrighted work, the damage to the marginal cost of the work created would reduce the total cost as production cost is fixed.
2. Terms and Services of Instagram
The terms and services of the social media service provider serve as a contract between the content providers, content user and the service provider. These terms and services also provide for the intellectual property right policies followed by the service providers.
2.1. Instagram Terms and Services
The term of use on Instagram provides for;
“You can’t post someone else’s private or confidential information without permission or do anything that violates someone else’s rights, including intellectual property rights (e.g. copyright infringement, trademark infringement, counterfeit or pirated goods). You may use someone else’s works under exceptions or limitations to copyright and related rights under applicable law. You represent that you own or have obtained all necessary rights to the content you post or share.”
The language of this term appears to value intellectual property rights however, the “Platform Terms” provides for a completely different approach. Whilst Instagram is asking users to acknowledge and value the IPR laws of copyright, it provides for ‘Your licence to us’ as;
“You grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to: host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of any information, data, and other content made available by you or on your behalf (including by your Service Providers or through your App) in connection with Platform”
Where as aforementioned all that is mentioned here by Instagram is exclusive right of author, the service provider requires you to give up those right when you decide to use it. Further it also have a provision for protecting rights of others, which says,
“You will not provide or promote content in your App that infringes upon or otherwise violates the rights of any person or third party.”
For effective bargaining theory, what is required is clear set of laws and all threat values to be public. Where these terms for service is highly inconsistent with each other and the set laws. Thereby would fail to have an effective solution if not rectified.
2.2. Fair Use principle
The defence of fair use/fair dealing is widely taken in cases of copyright infringement. It allows rights of author to be surpassed to others in certain situations mostly related to critique, academic or review purposes. Universal applicability of Coase’s theorem also extends to social reforms. In the case at hand it allows to draw a balance between freedom to expression and rights of copyright holders to balance the rights and restrict creation of monopoly or undue economic disparity. The defence of right to publicity can be one of the limbs of social norms. It can be argued here that the public has right to use the photos created by the photographer with their effort, equipment and expression of a particular idea can be used for lets say promotional purposes on personal Instagram handler to gain more likes and views which would increase the model’s economic incentives. In such cases the defence of fair use fails. As per the theorem, clearly here the photographer values the law more therefore shall be remedied.
3.Applicability in recent cases
Recently several celebrities are being sued for the above discussed copyright infringement. Model Emily Ratajkowski, pop star Dua Lipa, actresses Naomi Watts and Annabelle Wallis, singer Jennifer Hudson, and companies linked to actress Blake Lively, fashionista Bethenny Frankel and the Beach Boys’ Brian Wilson have been sued for said infrigement. Celebrities have given the defence of ‘Right to Publicity’ for allegation of breach of copyrights of paparazzi and photographers. They claim that as they were the subject matter of the work therefore they have right to use it as well. This argument is refutable by both economic and legal theories. While concerning the total cost of creation of the photograph, the fixed cost that of equipment, travel to the place, work done, softwares used in further editing and other costs, is incurred by the photographer. Moreover, the ideas though not protected but the expression is innate to the photographer which is copyrightable. Now the marginal cost for the author is being reduced by the act of using that photograph by the model as the purchasers are affected due to the act of making the work publicly available for free. The model has incurred no costs however gained economic benefits via it. It is unjustified and wrong in all ways. Moreover legally as well, the sole right of reproduction was with the photographer which was looted off of them.
The economic analysis can serve a very beneficial tool for right allocation to the person in need and to conclude how much damage should be paid to the aggrieved party. Though it is understandable that sole dependency on the economic model can creation the problem of dissemination. However the use of Hobbes theorem and bargaining theory can do away with the risk of low dissemination cost and risk of monopoly. The term and services of Instagram has lead to cases being decided in their favour, therefore they need to be made consistent with the law governing the copyrights. The cases can be decided with both the legal and economic approach and that would result in unbiased, and justice prevailing judgements.
- BABOVIC, M. I. H. A. J. L. O. (2015). THE EMPEROR’S NEW DIGITAL CLOTHES: THE ILLUSION OF COPYRIGHT RIGHTS IN SOCIAL MEDIA. Cybaris: An Intellectual Property Review, 6(1), 139–192.
- Cooter, R. D., & Ulen, T. (2011). Law and Economics (6th ed., Vol. 73). Pearson.
- Instagram. (2020, June 26). Facebook Platform Terms. Facebook. Retrieved November 26, 2021, from https://developers.facebook.com/terms
- Posner, R. A. (2005). Intellectual Property: The Law and Economics Approach. Journal of Economic Perspectives, 19(2), 57–73. https://doi.org/10.1257/0895330054048704
- Prauliņa, S. (n.d.). Copyright issues on social media. Dspace. Retrieved November 26, 2021, from http://dspace.lu.lv/dspace/bitstream/handle/7/56516/Praulina_Santa.pdf?sequence=1
- World Intellectual Property Organization. (1979, September 28). Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979) (Authentic text). WIPO IP Portal. Retrieved November 26, 2021, from https://wipolex.wipo.int/en/text/283693
- Yasiejko, C. (2021, October 15). Celebrities Are Sued for Posting Paparazzi Photos of Themselves. Bloomberg. Retrieved November 27, 2021, from https://www.bloomberg.com/news/articles/2021-10-15/ratajkowski-dua-lipa-targeted-not-just-by-cameras-but-lawsuits
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