Instagram Video v. Vine: Is a Claim for Copyright Infringement Looming?

On Friday, Instagram launched a new video sharing feature called, “Video on Instagram.” This application allows users to capture and share content using anywhere from three to fifteen seconds of video footage. This new application is strikingly similar to the Twitter owned application called, “Vine.” Vine allows more than 13 million Twitter users to post and share videos on their accounts that are six seconds or less.

In a side by side comparison, the two applications are similar with a main few differences. For one, the new Video on Instagram feature allows users to capture videos that are longer in duration by almost six seconds. Where Vine does not give users the ability to edit videos, when shooting multiple clips, Video on Instagram allows users to delete the last clip in a series, in the event of a bad take. One of the major features that sets Video on Instagram apart from Vine is that it allows users to share videos on more than just the standard social platforms like Facebook and Twitter. Video on Instagram allows users to also share their favorite videos on platforms like Tumblr, Flickr and Foursquare and via email. The Instagram feature also offers a “cinema mode” which stabilizes video filming. Lastly, true to Instagram style, the application provides users with 13 different filters that are not offered on Vine.

While the public has welcomed the new Video on Instagram with open arms, legal professionals are pondering whether Instagram is opening itself up to the risk of a lawsuit for copyright infringement.

To make this determination, courts will use the Abstraction-Filtration-Comparison Test (AFC). This test is the court’s best option because Instagram and Vine both consist of a multifaceted and highly technical mixture of elements that are both protected and unprotected under copyright law. Developed in 1992 by the U.S. Court of Appeals for the Second Circuit, this test provides a method of identifying substantial similarities of non-literal elements of computer programs for the purposes of applying copyright law.

The test is extremely tedious and difficult to apply because courts must examine the software at several levels of abstraction (from basic concepts to the actual lines of code) and apply the test to each level. The three step process requires the court to; 1) identify the increasing levels of abstraction of the program; 2) identify and filter out material that is not protectable by copyright; and 3) compare the programs by looking solely at the copyright-protected material and to determine whether the work was copied. Additionally, the relative significance of any copied material with respect to the entire program must be examined.

Although other tests have been applied from time to time, the AFC test is used most often in litigation as it best illustrates the type of reasoning courts use in copyright infringement actions involving computer programs.

For now, it seems as though the features offered by the new video sharing application are enough to give Instagram both an edge over the competition and more significantly – to keep the company out of murky legal waters, but only time will tell.

– written by Caren Seenauth

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