Since the recent launch of Instagram “Stories” earlier this month, much of the discussion about the new feature has revolved around its nature of being a “blatant rip-off” of Snapchat’s own Stories capability. As you may know, Snapchat introduced its “Stories” in 2013, a feature that enables users to group snapshots into one cohesive narrative that disappears after 24 hours.
On Tuesday, Instagram introduced its own Stories features, which allows users to share photos and videos that – like Snapchat – have a life span of no more than 24 hours. The service bears a striking resemblance — some might say it is a carbon copy — to Snapchat’s own Stories. Just how indistinguishable are the Stories features on Snapchat and Instagram? Here’s a list of similarities, as provided by Verge:
• Both are called “Stories;”
• Both allow clips up to 10 seconds in length;
• Both make stories temporary by removing uploads after 24 hours;
• Both allow you to select and watch your friends’ stories sequentially;
• Both allow you to reply to stories with direct messages;
• Both allow you to add custom text atop your images and video;
• Both include filters;
• Both let you draw with a built-in marker;
• Both include the option to save the media directly to your camera roll; and
• Both display who views your story.
Acknowledging that its new feature is nothing too novel, Kevin Systrom, co-founder and chief executive of Instagram, said in a statement this past week that “other companies deserve all the credit” for popularizing disappearing photos and videos. It has been an area of interest for Instagram for some time, he said. According to an Instagram spokesman, “Stories are a new format that’s just starting to see broad adoption, and we’re excited to bring them to Instagram and help evolve them.”
Systrom went on to note: “This isn’t about who invented something. This is about a format, and how you take it to a network and put your own spin on it.” But given the similarity between the two companies’ Stories features, users have been eager to compare the two features and ask: Is this a legal move on Instagram’s part?
Well, on the copyright front, Instagram is certainly in the clear. While the social media company clearly “copied” Snapchat’s Stories idea, copyright law does not provide protection for ideas. Instead, it provides protection for the expression of ideas. As such, unless Instagram’s own Stories feature bears a striking similarity to Snapchat’s in terms of implementation/interfaces (which it does not), copyright law almost certainly does not come into play. There are, after all, a number of differences. For instance:
• Instagram allows you to “rewind” stories to play back things you may have missed;
• Instagram has more marker options when it comes to doodling;
• Instagram lets you post sections of your story as an Instagram post;
• Instagram doesn’t show you who screenshots your story, but Snapchat does; and
• Geofilters and facial-mapping are still limited to Snapchat.
Similarly, trademark law (and trade dress, too) is not a suitable argument for attacking Facebook’s Stories feature, as trademark covers the protection of marks or designs that are used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services. Because the two companies’ Stories designs look quite different (aka: are expressed differently), trademark is not the most apt form of protection for Snapchat to assert.
Patent law, however, could prove promising. Snapchat does, after all, currently hold, a number of utility patents, which cover the sending, receiving, and/or display of “ephemeral messages,” such as one that protects the “a computer implemented method [that] includes receiving an object scheduled for automatic deletion after a specified viewing period, a specified number of views or a specified period of time.” (See Patent No. US 9,237,202). Another Snapchat-held patent protects “an electronic device [that] comprises a display and an ephemeral message controller to present on the display an ephemeral message for a transitory period of time.” (See Patent No. US 8,914,752).
As such, it seems possible – at least in theory – that Snapchat may have exclusive rights to the limited-time message display function upon which both Snapchat and Instagram’s Stories features are based and legal grounds to fight Instagram. However, legal experts have somewhat uniformly found Instagram’s rival feature to completely legal. University of Pennsylvania law professor R. Polk Wagner, for instance, told Wired: “The idea of featured ‘Stories’ is not new, so any patents would likely be quite specific to implementation details.” And he’s right. Stories, as simply collections of photos that tell a story, have been in effect since before phones and apps, thereby suggesting that Snapchat’s Stories invention is not entirely novel or non-obvious (two requirements for patent protection).
With this in mind, it seems Instagram is in the clear. As for how Snapchat will respond (legally or most likely, in a non-legal and more app-enhancing way), that has yet to be seen. So, stay tuned …