On The Case

Posting photos on Instagram? You may have surrendered copyrights

(Reuters) - U.S. District Judge Kimba Wood of Manhattan ruled Monday that Pulitzer Prize-winning photojournalist Stephanie Sinclair cannot sue the Internet site Mashable for embedding one of her photographs without a license because Sinclair posted the photograph on Instagram, which has a licensing agreement with Mashable. Judge Wood found that Instagram’s operative terms of service, which Sinclair accepted, required users who posted photos to public accounts to agree to sublicense those images to Instagram’s licensees.

The judge granted a motion by Mashable and its parent, Ziff-Davis, to dismiss Sinclair’s suit, which alleged that Mashable violated Sinclair’s copyright on a photograph of a teenaged Guatemalan mother breastfeeding her child while shucking corn. Sinclair posted the image on her public Instagram account in 2015 and rejected a 2016 offer from Mashable to license the photograph, for a story about women photojournalists, for $50. Mashable nevertheless embedded the image in its March 2016 article. Sinclair sued in 2018.

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Judge Wood rejected Sinclair's arguments that the Instagram service terms were contradictory or invalid. “While Instagram could certainly make its user agreements more concise and accessible, the law does not require it to do so,” she wrote. Ultimately, Judge Wood found, the decisive issue was straightforward: “Instagram granted Mashable a sublicense to embed the photograph on its website, and Mashable exercised its right pursuant to that sublicense.”

She did acknowledge that Instagram’s licensing policies create a conundrum for professional photographers like Sinclair. If they want to showcase their work to a large audience, they must maintain a public account, rather than posting only to a private account that’s not subject to Instagram’s licensing agreements. But posting publicly, under Instagram’s rules, allows Instagram’s licensing partners to embed photographers’ images without paying to use the images. “Unquestionably, Instagram’s dominance of photograph- and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that plaintiff’s dilemma is a real one,” the judge wrote. “But by posting the photograph to her public Instagram account, (Sinclair) made her choice. This court cannot release her from the agreement she made.”

Sinclair counsel James Bartolomei of the Duncan Firm said in an email statement that he and co-counsel Bryan Hoben are disappointed in the decision and considering an appeal. “We believe the ruling was misplaced to read consistency into Instagram’s incongruent terms of service,” the statement said. “Nowhere in any public statement, including its TOS, does Instagram ... clarify what rights content creators enjoy on its platform.” Publishers like Mashable, Bartolomei said, have figured out how to “exploit the gray area in Instagram’s TOS” in order to use copyrighted photos without paying a licensing fee.

Notably, Judge Wood sidestepped a debate in the courts over whether internet publishers can be liable for copyright infringement when they embed content from other sources. As the judge explained, embedding allows websites like Mashable to retrieve and reproduce images stored on other companies’ servers. Many courts that have opined on whether embedded links give rise to copyright liability have followed the lead of the 9th U.S. Circuit Court in 2007’s Perfect 10 v. Amazon, concluding that publishers are not responsible for images that are not stored on their servers. But in 2018, U.S. District Judge Katherine Forrest of Manhattan explicitly rejected the so-called server test in Goldman v. Breitbart, in which she said copyright liability does not turn on the technical question of where images are stored. (The Goldman case was voluntarily dismissed last year before the 2nd Circuit considered Judge Forrest’s ruling.)

Mashable’s lawyers at Davis Wright Tremaine contended that Judge Forrest’s reasoning in Goldman did not apply in its case because Mashable had a right to use Sinclair’s image via its licensing agreement with Instagram. Judge Wood agreed, noting that she “need not reach the question, addressed in Goldman but unsettled in this circuit, of whether embedding an image constitutes ‘display’ that is capable of infringing a copyright in the image.”

James Rosenfeld of Davis Wright declined to comment specifically on the Mashable case, but said that, in general, disputes over embedded content could well be determined by platforms’ terms of service. At the moment, he said, the Goldman case appears to be an outlier. (That case involved a photo of Tom Brady that was originally posted on a private Snapchat but reposted on Reddit and Twitter and then picked up by several news outlets.) But Rosenfeld said he’s expecting copyright litigation to continue to test publishers’ rights to embed images from various platforms.

On that point, it’s important to remember that Judge Wood was ruling only on the terms of service that applied to Sinclair’s public Instagram account at the time Mashable published her photograph. By contrast, U.S. District Judge Alison Nathan of Manhattan ruled in 2013’s Agence France Presse v. Morel that Twitter’s terms of service did not insulate AFP from copyright liability for publishing a photojournalist’s images of the earthquake in Haiti.

When it comes to copyright and embedded images, in other words, the fine print matters.