Instagram Policy Switch Puts Many at Risk of Copyright Infringement

On June 1, 2020, Judge Failla of the United States District Court for the Southern District of New York (SDNY) denied Newsweek’s motion to dismiss in relation to a copyright infringement matter brought by photographer Elliot McGucken for using his photograph in an article without permission.  Newsweek had argued that since it had not actually included the photograph in the article, but rather embedded the Plaintiff’s Instagram posting of the photograph, that it had a valid sublicense to use the photograph through Instagram’s Terms of Use and other policies.  Judge Failla found that while the agreements would permit Instagram to grant a sublicense to Newsweek, there is nothing that expressly and automatically grants Newsweek such a sublicense.

Interestingly enough, Judge Failla actually commented on another case, Sinclair v. Ziff-Davis[i], which had nearly the exact same fact pattern, but with the opposite outcome.  As I wrote about elsewhere, in that matter, Judge Wood of the SDNY granted the Defendant’s motion to dismiss based on the same theory, that Instagram had granted Defendant a sublicense that allowed it to embed in its article a photograph that the Plaintiff posted on her public Instagram page.  Judge Wood’s ruling was a mere month and a half earlier than Judge Failla’s, but with strikingly different outcomes.

As if almost in immediate response to this latest ruling, Instagram has come out to state that it does not grant users of its embedding API a sublicense to display images from the public profile of others on other websites.  Ars Technica reported that it received this statement from a Facebook company spokesperson via email.  In particular, Ars Technica writes that the email states that Instagram’s, “[P]latform policies require third parties to have the necessary rights from applicable rights holders.  This includes insuring they have a license to share this content, if a license is required by law.”

Without this license, embedding of content can lead to a chance that the site operated by an organization that embeds the content without the permission of the owner of the content, could be held liable for copyright infringement.  Some courts, such as those of the Ninth Circuit, view embedding as not subject to claims of infringement. Others however, such as those in the Second Circuit, are up in the air, with cases going either way.

Conclusion

 Before using the content of another on your website or other medium, it is imperative to understand the potential ramifications for doing so.  For now, there appears to be two clear rules, and one not so clear rule.

Number one, getting the content creator or owner’s permission is always going to be the best way.

Number two, never simply upload unlicensed content to your own platform, as that is almost always a recipe for disaster.  There are several high-profile copyright “trolls” that scour the web for unlicensed use of their content in order to bring claims of copyright infringement.

Number three, if you are going to use embedded content, know that you are currently putting yourself at an unknown risk with respect to claims of copyright infringement.  The outcome will be partially dependent on the court an action is brought in, at least until a case hits the Supreme Court to resolve the matter once and for all or the circuits all come into alignment.

[i] Sinclair v. Ziff Davis, LLC, and Mashable, Inc., No. 1:18-CV-00790 (S.D.N.Y. April 13, 2020)