Trademark Opposition

Instagram reels helps you to connect and reach out to a global network with 15 seconds short and entertaining video clips. It is probably one of the easiest and entertaining ways to explore our creativity and share it with the world. Now, some of you may be wondering whether such reels can get copyright protection. A copyright protection is granted to the original owner of the creative works and has the right to authorize others to use the work in relation to dramatic, literary, music, cinematographic films, sound recordings, and artistic works. When an original post is created and uploaded in Instagram, it automatically becomes the owners work. Not even Instagram has the exclusive right over such works.

With millions of users in Instagram it is a really tough task to find out the violators of copyright. Though Instagram itself updates it’s user policy regularly, here are some of the tips one should keep in mind to create reels and posts without violating the copyright.

A copyright violation in Instagram may occur in many aspects such as in a post, video, music used, status or reels. When it comes to music, Instagram automatically detects the copyrighted music and warns and restricts the usage of such music. When any such violations happen, Instagram can take down the entire post, mute the video or end the live streaming.

Hence, an Instagram reel is one of the best ways to avoid infringement as it only consists of videos and audios of less than 15 seconds. Legally speaking, this comes under the ambit of ‘fair use’. Fair use as such is an exception to the copyright infringement case. It allows limited usage of the originally protected works.

In India the usage of the principle fair dealing depends on facts and circumstances of each cases by applying judicial and logical reasoning. The nature of work, purpose, the amount of work used, and the effect of such use on the original work will be analyzed before categorizing the work under fair dealings exception. However, fair use does not provide a blanket protection in all cases.

So why is this allowed in reels? It’s because of the maxim ‘de minimus non- curat lex’, which means ‘the law does not concern itself with trifles’.1 In simple words, the judiciary is not going to intervene in matters which are of very little significance.

From perspective of a person who wants to create and upload any Instagram posts, one can avoid infringement by either getting the express permission of the original owner, or in case if one wants to upload the live concerts as stories or reels that’s absolutely fine. Another option available is to use music from the Instagram Music Library. Otherwise one can use royalty free music.

In cases of videos, one can mix a number of videos into one, make short videos, modify or change the already existing video. For instance, Yashraj Mukhate’s work on ‘Rasode mei kon tha’ became a hit. But in nutshell nothing beats an originally created work. So it’s always better to use one’s own creativity and caliber in bringing out original videos or posts. Recently, even Gigi Hadid a popular model was sued by ‘Xclusive’ for infringement of copyright in a picture that she posted.

From the perspective of the original owners, nowadays many use collaboration of works in Instagram by asking the users to tag them in their works. Or if they do not wish anyone from using their works then explicitly mention in the post or video that the work is copyrighted and is not be shared by anyone else.

In the case of Sinclair v. Diff Davis2, LLC, the respondent asked the permission of plaintiff to post a picture of theirs which was denied by the latter. However, they posted the same saying they have got permission from Instagram. The court in this case observed that the owner’s right is different from that of Instagram. And later on, Instagram changed their policy and states that the use of embedding API does not grant the user an automatic sub-licence for the image3.

To sum up, making short videos does not violate the copyright protection yet it is also safe to create original works.

  1. Diva Rai, How do you avoid copyright on Instagram, IPLEADERS, (Dec 24, 2021, 6: 14 pm),
  2. Sinclair v. Ziff Davis, LLC, 454 F. Supp. 3d 342 (S.D.N.Y. 2020).
  3. Ibid.