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Can I take another's photo with Instagram embedding API? NY courts have not settled the issue...

Posted by Giselle Ayala | Jul 28, 2020 | 0 Comments

According to wordstream.com around 95 million photos are shared on Instagram every day[1]. What happens with those photos after publication?, who owns the copyright over the photos?, and finally, what use can be made out of the photos?

Once you publish your photos on Instagram, you make them public to millions of people who can see, copy and use them inadvertently. In regard to the use of the photos posted by the users of Instagram, the Terms of Use of the social media platform expressly say that:

  1. B y default, anyone can see others' profile and posts on Instagram. However, each user has the option of making their account private so that only approved followers can see what is shared.

  2. Users are not allowed to doanything unlawful, or for an illegal or unauthorized purpose.

  3. Users grant to Instagram a nonexclusive license, so that Instagram canuse the content that is shared, posted, or uploaded. This license is royalty-free, transferable, sub-licensable, and worldwide to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works.

To sum, users grant Instagram the right do anything it wants with the content that is posted on the platform. This license, however, is not granted to the users themselves. Thus, if one user takes another's photo that could probably be copyright infringement.

In this context, it is worth noting that copyright exist form the moment a photo is taken, and publication on Instagram is not an obstacle to copyright protection. Additionally, the use of another's work is protected by law, and any grant of rights should be properly agreed, memorialized in writing and drafted using clear and unambiguous language. Finally, if an agreement incorporates other documents by reference, for example, Instagram incorporates by reference its Privacy Policy, the content of such materials is binding as well.

But there is more... it is not that simple...

Despite the express and clear language of the Terms of Use of Instagram, the right to use the photos published on the platform has been the subject of litigation. Recently, the discussion arose out of the embedding API tool that allows users to display Instagram content on third-party websites. These cases are all interesting, because instead of saving a copyrightable work on their own computer or server and then using it, the defendants simply display it while it is still stored on another device.

Sinclair v. Mashable, 2020 WL 3450136 (S.D.N.Y. June. 24, 2020)

On January 29, 2018, Stephanie Sinclair, a professional photographer, filed a copyright suit against Mashable, Inc. and its parent company, Ziff Davis, LLC, alleging that Defendants infringed the photographer's copyright when Mashable posted one of her copyrighted photographs on its website.

According to the facts of the case, the image at issue, titled “Child, Bride, Mother/Child Marriage in Guatemala”, was published on Ms. Sinclair's Instagram account to showcase her work to potential customers. Mashable contacted the photographer to negotiate a license. The image would be used as part of an article about female photographers. Mashable offered $50 for licensing rights to the photograph. However, the offer was rejected. Regardless of that, Mashable published the image on its website.

To incorporate the photograph, Mashable used a technical process called “embedding”. By means of this process the digital file of the image remains stored on a third-party's server, while being displayed. To complete the embedding process, Mashable used a service called “application programming interface” or “API,” which enables users to access and share content posted by others.

Pursuant to certain Instagram policies, users were able to use the API to embed Instagram posts in their websites. On the basis of Instagram's Terms of Use, Mashable argued that the use of Ms. Sinclair's photograph was permitted. Defendants contended that Mashable used the Photograph pursuant to a valid sub-license from the platform.

Considering the arguments of both parties, Judge Kimba M. Wood rejected Ms. Sinclair's allegation and granted Defendant's motion to dismiss. The decision highlighted the following:

  1. Pursuant to the Terms of Use of the platform, Instagram users grant to Instagram broad sub-licensing rights to exploit the photos and other content the users post on their public pages.

  2. It is within Instagram's right to sub-license to third parties the right to embed user content on third party websites via Instagram's embeds API.

McGuckin v. Newsweek, 2020 WL 2836427 (S.D.N.Y. June 1, 2020)

Six weeks after the decision in Sinclair v. Mashablewas issued, a contradictory judgment coming also from the United States District Court Southern District of New York revived the discussion related to the use of the embedding API of Instagram to display content on third-party websites.

In this case, Elliot McGucken, a photographer whose work is focused on landscapes and seascapes, brought a copyright action against Newsweek LLC, a premier news magazine and website. The work at issue was a photograph depicting a large lake in Death Valley National Park, which the plaintiff posted to his Instagram account.

The photograph was displayed on the Defendant's website accompanying an article titled “Huge Lake Appears in Death Valley, One of the Hottest, Driest Places on Earth”. The article noted that Plaintiff had captured the photograph of the ephemeral lake and provided some quotes from Plaintiff about his observation of the lake. Defendants alleged they had an implicit sub-license granted by Instagram by means of its embedding API.

Here, Judge Katherine Polk agreed with Judge Wood that Instagram's Terms of Use unequivocally grant Instagram a license to sublicense Plaintiff's publicly posted content. Additionally, Instagram Privacy Policy clearly states that other users may search for, see, use, or share any content that users make publicly available. However, in regard to the existence of a implicit sub-license, Judge Polk considered there was not enough evidence to dismiss the copyright allegations.

"Although Instagram's various terms and policies clearly foresee the possibility of entities such as Defendant using web embeds to share other users' content [...] none of them expressly grants a sublicense to those who embed publicly posted content. Nor can the Court find, on the pleadings, evidence of a possible implied sublicense.".

What happened next...

After the decision in McGuckin v. Newsweek, the plaintiff in Sinclair v. Mashabel filed a Motion for Reconsideration. Judge Wood granted the plaintiff's motion and held that considering the arguments of the McGucken decision , the copyright claims against Mashable could not be dismissed on the basis of Mashable's sublicense defense. Among others, the court explained that Instagram's Terms of Use were susceptible to more than one interpretation as to whether Instagram, in fact, grants a sublicense to third party users of Instagram's API.

Adding to this interesting events, in an email to Ars Technica, a website covering news and opinions in technology, science, politics, and society, an Instagram spokesperson expressed that by using Instagram embedding API users of the platform acquired no copyright license to display embedded images on other websites.

The issue is not an Instagram issue

The discussion about the legality of embedding third-party materials is not an Instagram issue, there other platforms that also use API for similar purposes. Additionally, this is not the first time courts deal with issues related to the use embedded images.

Goldman v. Breitbart News Network

On July 2, 2016, Justin Goldam published, through the Apple Snapchat service, a photograph of Tom Brady in the company of Danny Ainge, manager of the professional basketball team "Boston Celtics". The photo went viral on the Internet and later, it was used by Defendants in various online publications discussing the possibility of Brady participating in the recruitment of the NBA player Kevin Durant.

In his lawsuit, Goldman argued that the online media and defendant blogs, by embedding the link through which Goldman's photograph had been made public on Twitter, without authorization, constituted a violation of his copyright on the photo. Specifically, the exclusive right of display of the image. Defendants argued there was no violation by them of the plaintiff's copyright, since their conduct did not consist in downloading the image and then transmitting it from their own server.

In this case, the court explained that the exclusive right to display a work protected by copyright, consists of the author's ability to show a copy of said work, either directly or through digital media, and includes the transmission and re-transmission of the signals through which said work is exhibited or transmitted.

Even though the issue in this case is different from that, which is related to the existence of a sublicense granted by Instagram, the tree cases illustrate that copyright protection on the Internet is far from relaxing and that a careful approached is necessary when it comes to using third-party content.

The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Readers of this website should contact their attorney to obtain advice with respect to any particular legal matter. No reader, user, or browser of this site should act or refrain from acting on the basis of information on this site without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.

About the Author

Giselle Ayala

Giselle Ayala Mateus is a Colombian lawyer qualified to practice law in the United States and Colombia.   Giselle has served as counsel and representative on issues of adjustment of status, asylum application, work visas, interview with immigration officials, presentation and validation of forei...

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