Corinne Lederhouse, a student in Jon Pfeiffer’s Spring 2015 Mass Communication Law class at Pepperdine University, wrote the following essay in response to the prompt: Jane is a professional wildlife photographer shooting Chimpanzees in the Congo. One day, Jane forgot a camera in a tree. When she retrieved it the next day, she was amazed to find that a clever chimp had snapped a selfie. Jane posted the image to her Instagram account. When she returned to the US a few months later, Jane discovered that a national retailer was selling t-shirts featuring the image. Does Jane own the copyright to the image? Why or why not?
If we’re going to be realistic with this topic, it’s sensible to assume Jane holds the same rights toward the photo as if she were to have taken it herself. On the other hand, we know Jane didn’t take the photo; a monkey did when she left her camera behind in a tree. But seeing as the monkey is an animal and doesn’t have much say in the matter, he won’t be getting any credit for his clever selfie.
Technically Jane owns the copyright to her image, but when she signed up for Instagram she granted the corporation the right to sublicense her photos to any company, without paying her as a member. So as soon as Jane uploaded the monkey selfie to the popular photo-sharing platform, she was setting herself up for trouble. According to the Instagram terms of service, “Instagram does not claim ownership of any Content that you post on or through the Service.”
Instagram is brilliant for including that information in their terms of service, since people rarely ever read what it is they’re signing up for. That way, if conflict arises over content ownership, Instagram can point back to the terms their user agreed to and BAM, problem solved and they don’t get sued.
So even through Instagram denies claiming ownership of Jane’s photo, they are still allowed to sell it and profit off it at her expense. Jane still owns the copyright to this image but she couldn’t sue Instagram for copyright infringement since she agreed to their terms of service and therefore allowed them to use her content for their own profit.
The national retailer that began selling t-shirts with Jane’s image on it hasn’t done anything illegal. Is it ethically questionable to use Jane’s image without her express permission and profit off it while she is out of the country? Maybe. But Jane should have thought twice before using Instagram to showcase her professional photography because she gave them permission to use her work.
Corinne is a senior at Pepperdine University majoring in Public Relations and Religion.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.