When Does an Instagram Shout Out Become a Violation of IP Law?

| Aug 22, 2019 | Firm News

By Vivek Jayaram

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A few weeks ago I was scrolling through my Instagram feed when I came across a post by Virgil Abloh, creative director for Louis Vuitton.  

Virgil is a force, and his posts – like his work – are attractive, thought-provoking, and effective.  But this one caught my eye for a different reason.  This post contains images of Michael Jordan, which of course includes intellectual property belonging to the NBA and the Chicago Bulls IP, not to mention Air Jordan’s likeness and image.  To make matters a bit more complex, the post also promotes Virgil’s appearance at Coachella.

I assume Virgil didn’t obtain a license before posting this homage to MJ and the Bulls while promoting his DJ set at Coachella.  And, let’s be honest, anything he promotes these days is probably insulated from any IP challenge due to the undeniable cool factor that he embodies.

But, as my colleague Doni Robinson knows from my frequent ramblings on the issue , it is more and more interesting to me that rights holders are not enforcing against these types of posts.  Every day we see images of celebrities, athletes, and others used by people promoting their personal or professional brand on social media.  What’s more, Instagram and Facebook are major (and sometimes the only) advertising platforms used by emerging brands.

So what’s the big deal?  Well, a lot, potentially.  Anytime a brand is promoting itself by using another brand’s trademark (or copyrighted material, like a song), it could be infringement.  From a trademark perspective, merely sending the message to consumers that your brand is “affiliated” with another in some way could be grounds for a claim under the Lanham Act.  And while fair use might protect some posts from copyright liability, the majority of these posts are not fair use; they simply use music to make their posts look better, which is technically not kosher under the Copyright Act.  Others also use images of public figures, like Michael Jordan, to express gratitude to those who have inspired them.  This sounds above board, but in a strict legal context that’s probably not the case.  Would your company ever place an ad on a billboard that uses the unlicensed image or IP of someone else?  I hope not.

Until now, part of the beauty of platforms like Instagram is that brands and people can be as creative as they please without having to worry about things like trademark infringement or a violation of publicity rights.  But those days, I would think, are numbered.  Sponsored content is already big business.  It’s only a matter of time before IP owners begin enforcing their IP against rank and file users who use IP without license.  It will be an ongoing balance to strike between letting consumers promote their favorite brands without recourse while also ensuring that more commercial uses are licensed and controlled.

So the next time you repost/screengrab/copy/paste your favorite content for your brand’s next post or story, enjoy it, because that freedom might not last forever.