Copyright, Intellectual Property

Doing It For The 'Gram

The law is struggling to keep pace with Instagram's growth as a marketing force and money machine.

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Like digital-age Neros, the majority of us are whiling away our waking hours scrolling through pictures on Instagram as the world burns down to quaking embers all around us. The content that we are consuming and digesting via this scrolling process is imagery and text, most of which is generated by friends and family and others in our circles of acquaintance. But, increasingly, what you see on the ‘Gram is not a heavily filtered version of your cousin’s couscous, but is instead insidious advertising and copied content.

In retrospect, this was inevitable, as anything that is “authentic” and “real” and non-commercial will eventually be discovered by corporate interests and then commoditized and monetized and exploited. That has certainly gone down in connection with the ‘Gram, as the platform’s content, evanescent in form, and once a warm world of personal imagery shared among friends, has morphed into a cacophonous arena for advertising and marketing mercenaries, as well as “online personalities” with the will and the wiles to turn their personae into identity brands, to sell you goods and services. And the current legal status of this commoditized free-for-all is one studded with Valencia-tinged potholes.

Like the curation issue, which rears its ugly head with abandon on the ‘Gram. A particular tranche of internet denizens have created large followings (which are leveraged for large paychecks) by “curating” internet and social media ephemera that they then post on their own feeds, often without attribution. “Curating” in this instance simply means copying the work of others, with certain ‘Gram grabbers taking the nefarious extra step of removing the author’s name or watermark from the usurped material. This was all fun and games when the ‘Gram was just another social platform that you used to avoid the contemplation of your imminent mortality via the consumption of pictures of your friends’ emoting and sometimes costumed pets. But now, as the ‘Gram becomes a marketplace with huge advertising dollars at stake, it’s getting real in the field.

Many spoke out against one of the most egregious of ‘Gram grabbers, Josh Ostrovsky, whose social media account bears the name “The Fat Jew,” when he was caught copying jokes and images from other accounts and taking all the credit (and endorsement dollars). Ostrovsky initially laughed off the critiques, claiming that it was all in good fun. But, as it became clear that Ostrovsky was not just fooling around but was instead hungrily monetizing the content that he had taken from others, posting paid ads and enjoying the fruits of endorsement deals, the allegations of foul play increased in volume. They hit a fever pitch when it was announced that Ostrovsky had inked a deal with Comedy Central for a television show. He eventually capitulated and started adding credits to “his” jokes. But, the truth was out and the damage was done. While he avoided lawsuits, he lost his Comedy Central deal and became known less as a comedian and more of a joke thief and has seen his star fade as a result.

Part of the problem that people have with content-jacking accounts like Ostrovsky’s is that they use the stolen content to make money, money that most feel should go to the actual creators of the jokes and photographs. The line between non-commercial and commercial use matters, and as that line grows more and more blurred, the reposting of a photograph or a joke that someone else created becomes less and less chill.

This dollar-bill dichotomy is important because most copyright holders and artists do not mind (i.e., will not sue) when their art is posted by others non-commercially on social media platforms. But, when a brand or marketer or a “social influencer/curator/online personality” like Ostrovsky takes your work and uses it to sell things and obtain endorsements and make money, that is a whole different ball of wax. It is no secret that certain ‘Grammers generate millions of dollars of revenue via their content. And when millions are being made by exploiting the work of others without consent, lawsuits will follow.

This is what recently happened to Gigi Hadid and her agency, IMG Models. She (or whoever handles her social media) copied a photograph created by Peter Cepeda and reposted it on her ‘Gram, allegedly removing Cepeda’s author credit in the process. The photograph depicts Hadid rocking some hair curlers and a personalized jacket, and garnered over a million “likes.” Hadid, and other influencers like her, have rights in their names and likenesses, and are not shy about enforcing them. And, Hadid’s ‘Gram is without a doubt a commercial operation, making money based on the account’s content. Hadid’s monetization of Cepeda’s photograph without his consent led him to file one of the first of what is likely to be many copyright claims in connection with ‘Gram posts.

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So much fun is being had over on the Instagram content farm that even the Federal Trade Commission has joined the party. After content theft, the second biggest issue on the ‘Gram is advertisements masquerading as “authentic” uncompensated content. The FTC, as you may recall, protects consumers from false or misleading advertising, amongst other things. In the course of its duties it recently issued a scathing swarm of warning letters to social influencers revealed to be distributing advertisements cloaked in the Gram’s verisimilitude to their followers.

The FTC issued these letters after recognizing that Instagram is now not that much different than a series of teensy-tiny billboards arranged vertically. So, the Commission began applying its offline consumer protection guidelines to the ‘Gram’s “sponsored content,” known to you and me as “ads.” Your typical spon-con depicts a perfectly-lit, well-coiffed individual posing with a weight loss shake or an under-eye moisturizer, and includes a caption extolling the product’s many, many virtues. But, most likely, said individual has never even used the product and certainly doesn’t believe anything of the gushing in the caption. Which would be fine but for the fact that the influencer, who is being paid for being “authentic” and maintaining an “organic connection” with his or her followers, either wholly obscures the fact that they are being paid for the post or, at most, includes a vague tag such as #spon in a thicket of other hash tags at the end of the post to provide notice that all is not exactly as it seems. This is misleading, at best, and potentially illegal.

The ‘Gram as a marketing force and money machine is still in its ascendant phase, and the law is struggling to keep pace with its growth. As the platform grabs larger and larger handfuls of those sweet brand and endorsement dollars, the copying and misleading spon-con that has colonized its feeds becomes far less likely to garner many likes from creators and the courts.

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

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