Although U.S. courts have previously ruled against photographers who have sued online media sites that embedded Instagram photographs for copyright infringement, a recent statement by the social media company -- as well as a new lawsuit -- may challenge that interpretation.
Last month, a spokesperson for Instagram’s parent company, Facebook, responded to an inquiry by Ars Technica, a website covering technology, and said that users who embed posts may need to get permission to do so. Photography blog PetaPixel called the comment a “bombshell statement on copyright.”
“While our terms allow us to grant a sub-license, we do not grant one for our embeds API,” a Facebook spokesperson wrote to Ars Technica, referring to its application programming interface. “Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law.”
This statement could affect future copyright cases, including a lawsuit filed by photographer Elliot McGucken against Newsweek for embedding his image of an ephemeral lake in an online article. Just days before the Instagram statement was made, a judge had decided not to dismiss McGucken’s case -- even after considering previous judgements against photographers.
“Nevertheless, the court cannot dismiss plaintiff’s claims based on this licensing theory at this stage in the litigation. As plaintiff notes in his supplemental opposition brief, there is no evidence before the court of a sublicense between Instagram and defendant,” the judge wrote.
Earlier this year, a judge in a different case had cited Instagram’s terms of service as the part of the basis for her April decision to dismiss a suit filed by Stephanie Sinclair, a photographer who often focuses on gender and international human rights issues, against Mashable. By agreeing to the terms of service, users grant Instagram "a non- exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the content."
But following Instagram’s statement and citing the decision in McGucken’s lawsuit, the US District Court for the Southern District of New York agreed to reopen Sinclair’s case against Mashable.
In 2016, Mashable had reached out to Sinclair and asked to include her photograph created by Sinclair in a story that ran with the headline, “10 female photojournalists with their lenses on social justice.” The website offered $50 for the publication of her image, titled ‘“Child, Bride, Mother/Child Marriage in Guatemala.” After Sinclair declined, Mashable showcased the photograph by embedding her Instagram post, which Sinclair argued violated her copyright.
Previous photography copyright cases have centered on a concept that has been dubbed “the server test,” an argument that the owner of the server that delivers the content to users is liable. An embedded post from Instagram, in actuality, is code that directs a user’s browser to retrieve the contents of a post directly from a third-party server.
Many in the photo community will be closely following McGucken’s and Sinclair’s cases to see if the courts provide additional guidance on embedding images, as any future decisions may have far-reaching consequences for online media usage.