If your business posts photos, videos, graphics or written content to Instagram, Facebook, LinkedIn or TikTok, your copyright is doing two jobs at once. When you upload, you are exercising your exclusive right to communicate your work to the public, and at the same time you are accepting the platform's terms of service, which take a broad licence over that same content. Many business owners assume the two cancel each other out, or that posting means giving the work away. Neither is quite right.
This article walks through how the pieces fit together under Australian law: what the Copyright Act 1968 (Cth) (the Act) gives you before you ever post, what the platform's terms take from you when you do, what other users can do with content you make public, who carries the risk when something goes wrong, and where a dispute ends up being heard.
What copyright gives you before you post
Under s 32 of the Copyright Act 1968 (Cth), copyright subsists automatically in original literary, dramatic, musical and artistic works from the moment they are created. There is no registration system in Australia. A photograph your employee takes with a phone, a graphic designed in-house, a product video and the copy written for a caption are all protected the moment they exist, provided they are original. You do nothing to earn the protection and there is no form to file to keep it.
What the owner gets is a bundle of exclusive rights. Section 31 gives the owner of copyright in an artistic work, which covers photos, graphics and logos, the exclusive right to reproduce the work in a material form, to publish it and to communicate it to the public. Literary, dramatic and musical works add public performance and adaptation to that list. "Communicate" is defined in s 10 to mean making the work available online or electronically transmitting it. That definition matters because it means the act of uploading is itself one of the reserved acts: only the copyright owner, or someone with the owner's licence, may lawfully put a work online.
Copyright also lasts a long time. For most works it continues for 70 years after the end of the calendar year in which the author dies, under s 33. A photograph posted today is protected for the photographer's lifetime plus 70 years, so it is not a short-term concern.
The parties in the picture
Once you post, four actors are in play, each with different interests:
- You and your business: You want the reach that social media provides while keeping control of content that has commercial value.
- The platform: The operator wants to run a free service that is funded by content being distributed, embedded and re-shared, so its terms are drafted to make that possible.
- Other users: They can view, screenshot, download and share what you make public, and some will use your content without asking.
- The courts: Australian courts hear copyright infringement claims under the Act, while a contractual dispute with a platform may end up in the forum the platform's terms choose, often overseas.
The tension is straightforward. The platform does not need to own your content to make money from its distribution, so its terms are designed to leave ownership with you while extracting the widest possible licence. Understanding that split between ownership and licence is the core of the whole topic.
What the terms take: ownership stays, licence goes
The major platforms are explicit that you keep your copyright. Meta's Terms of Service state that you own the intellectual property rights in the content you create and share, and that nothing in the terms takes away the rights you have in your own content. What the terms do take is a licence, and it is broad. Instagram's Terms of Use grant the platform a non-exclusive, royalty-free, transferable, sub-licensable, worldwide licence to host, use, distribute, modify, run, copy, publicly perform or display, translate and create derivative works of your content.
Each of those words does real work:
- Non-exclusive: You can licence the same content to clients, stock agencies or other platforms. You are not locked out of your own work.
- Royalty-free: The platform does not have to pay you, no matter how commercially the content is used.
- Sub-licensable: The platform can pass the right to use your content to third parties, for example through embedding tools and application programming interfaces, without asking you each time.
- Worldwide: The licence removes any geographic limit.
- Create derivative works: The platform may crop, remix, translate and adapt your content, which is where your control over how the work appears starts to slip.
This licence is effectively the price of using a free service. The exact scope differs from platform to platform, and terms change when platforms update their agreements, so the current terms of each platform your business uses need to be checked individually. The pattern, however, is consistent across the major networks: ownership stays with you, and the licence granted in exchange is very wide.
What other users can do with your content
Posting to a public account makes your content visible to anyone. Other users can copy it, screenshot it, repost it and embed it, and some of that use will be outside your control. It is important to understand what Australian law does and does not do about that.
Making content public is not the same as giving the world a licence. Under Australian copyright law, the public nature of a post does not by itself authorise anyone to reproduce or communicate the work. A user who downloads your photo and uses it in their own advertising is still reproducing it in a material form and communicating it to the public without the owner's permission.
The complication is that the platform's licence can reach third parties who act through the platform's own tools. The United States case Sinclair v Ziff Davis (2020), decided in the federal court for the Southern District of New York, illustrated this. A photographer posted an image to a public Instagram account, a publisher embedded the photo through Instagram's application programming interface, and the court held that the photographer's grant of a sub-licensable licence to Instagram defeated her infringement claim against the publisher. Under Australian law, the equivalent analysis would turn on whether the third party's act is a communication to the public and whether the platform's licence, or an implied licence, extends to it. That is a question a lawyer should assess rather than assume, because the answer will depend on the exact terms in force and the way the content was accessed.
Separate from the economic rights, the Copyright Act 1968 Part IX gives authors moral rights: the right of attribution, the right of integrity and the right not to have the work falsely attributed. Posting online does not waive them. Using your photo without naming you as the author can breach the attribution right, and cropping or altering it in a way that is derogatory to your reputation can breach the right of integrity. Consent to moral rights can only be given in writing, so a passing reference in a platform's terms will not normally amount to a waiver. Moral rights last as long as the copyright, generally the life of the author plus 70 years.
For a business, uncontrolled sharing cuts both ways. Viral spread can be free marketing, and many brands deliberately design content to be shared. The trade-off is that once an image is circulating, you have largely lost the ability to decide where it appears, in what form and alongside what message.
Who carries the risk when something goes wrong
When your content is misused, the question of who is liable can matter as much as who owns the rights. The platform's terms generally disclaim responsibility for the content users post and make each user responsible for what they upload. This mirrors the structure of the legislation. Division 2AA of Part V of the Copyright Act 1968 limits the remedies available against service providers, but "carriage service provider" is defined in s 10 by reference to the Telecommunications Act 1997, a category that does not cover social media platforms. Section 39B adds that a person who merely provides the facilities for a communication is not taken to have authorised infringement because someone else uses those facilities.
The practical consequence is that when someone copies your work, you enforce against the copier, not the platform. That usually means using the platform's reporting and takedown tools, preserving evidence of the infringement and the date the work was created, and then, if the matter is worth it, a demand letter or proceedings against the person who did the copying.
The risk also runs the other way. If your business reposts images found on Google Images, shares a competitor's photo or uses client photography without permission, your business is the infringer, and the same exclusive rights protect the other side. Reproducing and communicating to the public are the two acts most businesses commit without thinking, and the defences available under the Act's fair dealing provisions are narrow, so they should not be assumed to cover marketing use.
Where disputes are heard
The platform's terms also select the law and the forum for disputes with the platform. Meta's terms are governed by the law of California, and disputes involving business users are to be resolved in the United States District Court for the Northern District of California or a state court located in San Mateo County, as summarised in analyses of the terms. Individual consumers receive a carve-out that allows disputes to be heard under the law of their country of residence, but a business does not get that benefit.
That matters for Australian businesses in two ways. First, a contractual dispute with the platform over your account, content or licence will likely need to be pursued under Californian law in Californian courts, which is a significant practical cost. Second, and more importantly, a copyright claim against another user who copied your work is a different animal. Copyright is territorial, and infringement occurring in Australia is a matter for the Copyright Act 1968 in Australian courts, regardless of where the platform is based. The governing-law clause governs your contract with the platform, not your rights against a third-party infringer.
Where a lawyer helps
For most businesses, the value of legal input is in the decisions made before and just after posting, rather than in litigation:
- Reviewing the terms: The terms of the platforms your business relies on should be reviewed and the licence exposure that matters for your particular content flagged, which is especially important for photographers, designers and other creative businesses whose content is the product.
- Setting up an enforcement routine: How to use takedown tools, what records to keep to prove ownership and when a cease and desist letter is worth sending.
- Drafting licences and consents: When you licence content to clients or use content created by others, include the written moral rights consents that Australian law requires.
- Advising on exposure: Whether reposting a customer's photo, a supplier's image or a stock photo under the wrong licence creates liability your business cannot afford.
- Choosing the right posture: Whether accounts should be public or private, whether valuable work should be watermarked and whether key branding deserves trade mark protection alongside copyright.
The clause to read before you post
If there is one place where the risk concentrates, it is the sub-licensable, royalty-free licence in the terms of the platforms you use. For a business whose content is its product, that clause is the whole game: it is what lets the platform pass your work to third parties, modify it and use it without paying you, while you keep a copyright that becomes progressively harder to enforce as the work spreads. Before your business posts another piece of content, know what the platform can do with it, and decide consciously whether the exposure is worth the reach. That assessment is exactly the kind of thing a lawyer can work through with you quickly, and it is far cheaper than litigating an infringement claim in California or chasing an infringer across platforms after the fact.