How to stay "Instasafe" as a creative

Photo via Pexels

I love Instagram. It lets me communicate to the world what I'm about (nourishing food, natural light and comfortable shoes wherever possible, and preventative health in life, law and business!), and has allowed me to connect with so many like-minded clients through my page @thelawyerslunchbox.

And I know many of my clients loving using it for their own businesses.

But we all need to make sure we stay legally safe on Instagram. This means not falling foul of Insta's terms and conditions, using the right images and not saying or doing anything illegal.

Here are some tips...

Types of images

Instagram has the right to remove, edit, block, and monitor accounts containing content that Instagram determines violates their terms of use.

To avoid problems, you must not post violent, nude, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive photos. This term is interpreted sensibly, for example if your business is in fashion, intimate apparel, swimwear, music, celebrity, modelling etc, photos may be quite sexual without causing any trouble. But nudity, or pornographic inference (even if digitally-created), will not be okay. Use common sense when thinking about what Instagram and its diverse audience may find offensive. Nudity in photos of drawings, paintings and sculptures will be acceptable, as will photos of mastectomy scarring and breastfeeding women.

If your business is related to children or you like to share photos of your own family, be mindful of the broad audience that they may be open to. Photos of nude or partially nude children may be removed, even if they seem innocent and are being shared with the best intention. Instagram’s aim here is to ensure that they don’t fall into the wrong hands.

Copyright

You can only use images that do not infringe others’ intellectual property rights. If you are posting authentic images created by you or your business (such as your own photos, photoshoots, illustrations, videos, or graphics) then this is not an issue. But if you want to post an image found online, then you must be vigilant. There are millions of high-quality graphics and photos online available for free commercial use. Many websites curate images in the public domain, and you are free to use them in any way. In most cases, you do not have to provide attribution. But check the terms of the site to make sure. If attribution is
required, check what format.

It is best to assume every image you find online is copyrighted – a copyright notice is not legally required as notification of copyright, so the absence of a © or watermark isn’t a sign that no copyright exists. If an image is covered by copyright, the copyright holder may agree to some uses but not others. You must check this before using the image.

If you alter a copyrighted image, it does not relieve you from potential liability. If you repeatedly infringe other people’s intellectual property rights, Instagram will disable your account.

On Instagram, you are liable for what you upload. This means you are legally responsible for copyright violations even if you hire a social media professional who chose and used the offending image. It is important to ask your social media manager where they source their images from. You should contractually ensure that if an image they use is found to violate copyright and you are required to pay, that they will indemnify you.

Music is covered in the same way as images, and you are not allowed to use music that you don’t own the rights to, for any commercial or non-personal use. This includes music in videos uploaded to your feed as well as Instagram lives and IGTV, and can extend to music playing in the background of videos.

Photo via Pexels

What you can legally say

Don't copy any other person's written work in your Instagram posts. This may infringe their copyright.

And don't post unwanted comments, likes or other forms of commercial or harassing communication (spam) to Instagram users. This includes repeatedly contacting people for commercial purposes without their consent.

Further, online cyber bullying is a crime in Australia. You must not threaten, harass, or offend someone, stalk someone, access others’ Instagram accounts without permission or defame someone on Instagram.

How to deal with trolls

A troll is a member of an online community who deliberately tries to disrupt that community by posting inflammatory content.

How should you deal with trolls commenting on your business page?

• Use Instagram’s built-in reporting option. Instagram will quickly remove content that does not meet community guidelines.

• Unfollow or block the person who posted the comment. And delete the trolls’ comment on your post.

• Sometimes ignoring a troll is best. If they are looking for a reaction, they may lose interest when you give them nothing.

• If the troll is a customer with a complaint, take notice and try to help. Humour can be used to effectively engage unhappy customers and turn them into advocates for your business. Acknowledge yet make light of the situation, and apologise for the customer’s experience.

• If the troll is spreading rumours or misinformation, address the issue head-on and retaliate with the truth.

• If the troll points out a mistake, look into it, make the proper corrections and admit that you were wrong.

Instagram has the right to modify or terminate your account for any reason, without notice,
and at any time. So stay the right side of their terms and the law.

Jessica Kerr is the director of Sinclair + May. Jessica set up Sinclair + May with a view to do law differently and make legal services accessible for small businesses. Sinclair + May operate on a fixed fee basis and offer retainer services for their clients. Sinclair + May is a female-led, boutique commercial law firm and work extensively with the creative industry. You can follow Jessica on instagram @thelawyerslunchbox for useful legal tips and see more about Sinclair + May at www.sinclairmay.com.au.

Should you trademark your business name?: Brand protection tips for creatives

This week we’re introducing a new regular column for 2018, focused on legal issues for creatives. To kick things off, let's take a look at trademarks.

Why trademark your business name?

Trademarking your business name can help ensure your customers identify your product or service as unique, and ensure your business is – and remains – distinguishable from all others. You can trademark your business name on a national and/or international level, after considering whether your business will operate locally, nationally or globally.

The pros

The benefits of registering your business name as a trademark include:

• Protection of your name against imposters and copycats

• A secure brand on social media. Facebook, Instagram, Pinterest, Twitter and other social media venues have policies in place to protect you against abuse.

• Trademarks are easy to renew.

• Trademarks build brand loyalty and may even evoke pride in employees.

• Trademarks can safeguard against cybersquatting (domain names that are identical or similar to your trademarked name).

A business name alone does not give you exclusive trading rights or ownership over that name. A trademarked business name can be extremely useful as a marketing tool; it gives your business an identity, or brand. You will have ownership and exclusive rights to the commercial use, license or sale of your business name as a trademark. No one else in Australia will be able to commercially use your business name within the class of goods and services it is registered under. It will carry intellectual property protection and you may use the trademark symbol (a capital R enclosed in a circle) following your business name, alerting others that your business name is a registered trademark. This can help build the value of your business, and the trademark may hold value in itself. If another trader tries to pass off her own product or service using your trademark, it will be an offence under the Competition and Consumer Act 2010.

It’s possible to protect your business name as a trademark without registering it, if your business has been using it for a sufficient period of time and has built up a significant reputation. However, in the long run, protecting a trademark without the benefit of registration is likely to be much more difficult and expensive.

New businesses registering their business names will be alerted to your trademark when they use IP Australia’s TM Check to ensure they do not infringe on an existing registered trademark.

The cons

The negative aspects of registering your business name as a trademark include the hassle of dealing with government agencies, the time it takes to jump through legislative hoops and the cost—which is not large, but not insignificant either.

How to register

To register your business name as a trademark, use the Australian Government IP Australia online services. You’ll be offered different cost structures depending on whether you use the TM Headstart service or the Standard filing service; application costs range from $130 to $480 per ‘class’. The ‘class’ refers to the category of goods and services, which are divided into forty-five classes. To discern which class/es you need to register your trademark under, think about the exact nature of your business and consider the following:

• Where do you derive your business income?

• What is the nature of your business?

• What are you known for by your customers/clients?

• What products or services does your business provide?

Once your trademark application is approved, there is no further cost to register the trademark.

It takes three to four months for IP Australia to examine your trademark application and ensure that it meets legislative requirements, is under the correct class and so on. Refunds are not given for errors, so it is important to get the application perfect the first time around. You might save time, energy and money by engaging a lawyer to do the application on your behalf; if you are moving your business to a global platform, a lawyer’s advice on trademarking overseas will be indispensible.

Once your trademark application meets all requirements, it will be registered and you will be notified in writing.

Maintaining your trademark

If you do decide to trademark your business name, you must actively use it in the course of trade. If you do not use it, the trademark can be removed on the grounds of non-use. (Trademarks are not allowed to be registered to simply stop other traders from using them.)

Once registered, your trademark remains for ten years from the filing date. You can renew your trademark from twelve months before the renewal is due, or up to six months after. Current on-time online renewal fees are $400 per class, however there will be extra fees if you renew after the due date.

Weighing up the pros and cons

Overall, trademarking your business name is usually worth the time, effort and cost. It ensures the business you have built will remain solid and hold its reputation for the long term, and you won’t need to change your name or branding down the track.

Jessica Kerr is the director of Sinclair + May, a female-led, boutique commercial law firm that works extensively with the creative industry. Jessica set up Sinclair + May with a view to do law differently and make legal services accessible for small businesses. You can follow Jessica on Instagram for useful legal tips or visit Sinclair + May at sinclairmay.com.au.

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