Copyright on Instagram posts: analysis of the legal framework.

The question of rights concerning Instagram content has become a major issue in the influencer economy.

At a time when influence marketing represents a strategic lever for businesses, it is crucial to precisely understand the legal framework governing the reuse of content created by platform users.

This analysis aims to clarify the conditions under which a brand can legally republish Instagram content (Facebook and Threads as well) and situations requiring a formal assignment of rights.

I. The general legal framework for content on Instagram.

The legal basis for the use of content on Instagram primarily relies on its terms of use (ToU).

The latter explicitly stipulate that users grant the platform “_a non-exclusive, royalty-free, transferable, sublicensable, worldwide license_” to their content.

This license notably allows for hosting, using, distributing, modifying, performing, copying, publicly broadcasting or displaying, translating, and creating derivative works from published content.

Meta's privacy policy complements this framework by confirming users' ability to reshare publications.

This authorization is part of an integrated ecosystem logic, extending to all Meta platforms (Instagram, Facebook, Threads).

Nevertheless, it should be noted that similar provisions on Facebook regarding intellectual property have in the past been recognized as contrary to French provisions on the matter and deemed unwritten \\ [1\\].

II. The scope of republication rights.

The license granted by users allows for relatively free sharing within Meta platforms.

This freedom is notably manifested through several features on Instagram:

2\\. Crossposting or co-publishing.

This intra-platform sharing capability has recently been addressed by jurisprudence, notably by a decision of the Tribunal judiciaire de Paris \\ [2\\] which implicitly notes a distinction between sharing within the Meta ecosystem and sharing carried out on third-party platforms.

Despite this apparent freedom, certain important restrictions apply:

Sharing must respect the creator's moral rights

Use must fall within the framework of the functionalities offered by the platform

Content cannot be extracted and used for advertising without authorization.

III. Cases requiring a formal assignment of rights.

Republication on platforms external to the Meta ecosystem (such as TikTok or YouTube) imperatively requires a formal assignment of rights.

This requirement is explained by the fact that the license granted in Instagram's ToU does not extend beyond Meta platforms.

Likewise, the use of Instagram content on external websites requires the explicit authorization of the creator.

This assignment must cover the creator's copyrights over their content, the right to use their image and other attributes of their personality (voice, name, pseudonym), as well as the specific terms of use of said content.

In the context of a collaboration with a content creator, it is mandatory to establish a contract (Article 8 of the "Influencers" law of June 9, 2023 \\ [3\")\\]) specifying:

The authorized modes of exploitation.

Conclusion.

The analysis of the legal framework for republishing Instagram content reveals a clear dichotomy between uses within the Meta ecosystem and those carried out on third-party platforms. While intra-platform sharing benefits from relative freedom, any external use requires formalizing rights.

This fundamental distinction must guide both brands and content creators in their collaborations.

It emphasizes the importance of a rigorous legal approach in managing rights over digital content, particularly in the context of influence marketing where the economic stakes are significant.