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Two Recent Cases Highlight the Importance of Understanding Copyrights When Using Instagram and Other Social Media Platforms

May 01 2020

While there are no shortages of litigation matters stemming from the use of Instagram, two recent cases have highlighted the importance for users, both individual and corporate, to understand how copyrights work in the world of social media.  These two cases deal with what you can and cannot do with images and videos, as well as what rights you give up when you make a public post on Instagram.

The two cases are Sinclair v. Ziff-Davis[i], and Ma v. Kendall Jenner, Inc. et al.  Each involves a different copyright issue, highlighting the need for users to be aware of how the actions they take on Instagram, and other social media platforms, can create legal ramifications.

 

Sinclair v. Ziff-Davis

Stephanie Sinclair is a photojournalist who is known for her works relating to human-rights issues, particularly with respect to child marriage and other gender issues.  Mashable, an online media and entertainment site owned by the Defendant, Ziff-Davis, approached Sinclair on March 11, 2016, seeking a license to use one of Sinclair’s photographs in one of Mashable’s articles in exchange for fifty dollars.  Sinclair declined Mashable’s offer.

On March 16, 2016, Mashable published an article that “included” the photograph Mashable tried to license from Sinclair. However, Mashable did not directly incorporate a copy of the photograph into the article, rather, it used an embedded image pulled from Instagram which Sinclair had uploaded to the popular social media website.

Sinclair later learned of Mashable’s use of the embedded photograph without her express permission and requested Mashable take down the photograph.  Mashable refused to do so, and Sinclair responded by bringing the present matter in the Federal District Court for the Southern District of New York (SDNY).

For those unfamiliar, embedding is a process whereby a webpage can pull content from a third-party site, such as Instagram, and include that content directly in line with the webpage’s own content.  The embedded content is not stored on the servers of the website, but rather pulled by the user’s web browser at the time the webpage loads on the user’s browser.  These embedding features are frequently offered by social media, news and other content providers via what is known as an Application Programming Interface (“API”).  Ultimately, many content providers encourage use of these APIs as they drive more traffic to the websites of the content providers.

Not surprisingly, Instagram requires its users to agree to a series of agreements, such as its Terms of Use, Platform Policy, and Privacy Policy, in order to be permitted to upload photos, videos or other content.  Since Instagram encourages the use of embedding its content in third-party sites, it is also not surprising that Instagram’s agreements not only require its users to grant a license to Instagram to use any posted content, but also allow Instagram the right to sublicense the content to others that embed that content.

This is exactly what the Defendant argued in their Motion to Dismiss the Complaint, and Judge Wood agreed.  The Plaintiff argued, among other things, that: 1) Plaintiff’s denial of a direct license to Defendant prevented Defendant from obtaining a valid sublicense from Instagram; 2) the court cannot take judicial notice of the meaning of Instagram’s agreements since they are complex and subject to different interpretations; 3) Instagram cannot confer rights to the Defendant, since Defendant was not an intended beneficiary of the agreements; and 4) Instagram’s right to sublicense was invalid since it was created by a series of complex, interconnected documents.  The Court found none of these arguments persuasive and held that by signing up to Instagram and publicly posting her photograph, that photograph was subject to the terms of Instagram’s agreements, and Defendant therefore received a lawful sublicense to embed the photograph in their article by way of those agreements.

The takeaway from this is that if you are posting content on Instagram, or any other social media platform, it is important to understand what rights you are giving up with respect to that content.  This includes potentially losing the rights to control where that content gets redistributed.  It should also be noted that with respect to Instagram, this applies specifically to those with “public” profiles.  Other terms apply to those with “private” profiles, which includes restrictions on redistribution through embedding.

It is important to note, however, that this does not mean that content that is posted publicly is automatically allowed to be redistributed elsewhere.  Remember, in this specific case, Mashable followed the correct procedure, and used Instagram’s API to embed content on its article in a way that permitted Mashable a valid sublicense to the content.  Had Mashable copied the image and uploaded it to its website and included it in its article, the results would have been vastly different.

Which brings us to Ma. v. Kendall Jenner, Inc. et al.

 

Ma. v. Kendall Jenner, Inc. et al.

Angela Ma, a resident of New York, captured a short video of Kendall Jenner leaving a store in New York City, surrounded by the typical throng of photographers, fans and handlers. It is not clear how the model and realty show star came in possession of Ma’s video, but it ended up being posted to Kendall’s Instagram page on September 13, 2019.  Captioned simply, “bye nyc,” the post garnered tens of millions of views.

Two days later, on September 15, 2019, Ma filed an application to register the copyright in her video.  On March 31, 2020, Ma filed a suit against Kendall and her company, Kendall Jenner, Inc. in the United States District Court for the Central District of California claiming the infringement of her registered copyright. Ma’s complaint seeks unspecified damages based on Kendall and her company’s profits from the video, or statutory damages associated with copyright infringement that can be as high as $150,000 per infringed work.

While this is a case that is unlikely to go all the way through trial, and will likely settle early for some undisclosed amount, it is important to note that, technically, based on the alleged facts in the complaint, Angela Ma is in the right with respect to this particular matter.  That being, even if you are the subject of a photograph or video, you do not hold rights to that photograph or video unless there are agreements in place that transfer the rights from the entity that created the photograph or video to you.

This scenario arises all too frequently, and even though most are not Kendall Jenner, and therefore do not experience the ramifications of using the content of others, that does not mean that the liability for doing so does not exist.

Given that Kendall Jenner’s marketing and promotion team is likely involved in the curation of her Instagram postings, it is surprising that this posting even occurred, especially since Kendall is not the first to be hit by these types of lawsuits.  Contemporary influencer and model, Gigi Hadid was the subject to a similar lawsuit in 2019.  However, luckily for Gigi, the case was dismissed since the Plaintiff failed to obtain the registration for their copyright before filing the complaint.  And there are hundreds of more examples that one could point to on these matters.

 

Conclusion

These two cases highlight the importance of understanding the implications associated with publishing content on social media platforms.  While most are just looking for more content, and more exposure, the liabilities for posting content to social media platforms, like Instagram, are real.

One problem is that infringement of a registered copyright may come with the possibility that the infringer could be entitled to both statutory damages, as well as recouping their attorney’s fees.  Compounding the matter is that there are numerous law firms that will push these innocuous infringement matters to extract larger than expected settlements, knowing that their fees are likely to be covered by the defendant’s in the matter.

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