Instagram dodges photogs' copyright lawsuit over embedding feature

Instagram app is seen on a smartphone in this illustration taken, July 13, 2021. REUTERS/Dado Ruvic/Illustration
  • Embedders don't infringe because they don't store image copies
  • Court applied 9th Circuit's disputed server test

(Reuters) - A group of photographers' allegations that Instagram's embedding tool enables users to infringe their copyrights have been dismissed by a San Francisco federal court.

The Instagram feature doesn't violate the photographers' exclusive right to display the pictures publicly because third-party websites that embed the images don't store their own copies of them, U.S. District Judge Charles Breyer said Friday.

The decision applies the 9th Circuit's divisive "server test" for internet copyright infringement, under which a website can only violate the display right if it also stores a copy of the copyrighted work on its server.

A Manhattan federal judge, U.S. District Judge Jed Rakoff, became the second judge in that court to reject the server test in July.

"But unlike the U.S. District Court for the Southern District of New York, this Court is not free to ignore Ninth Circuit precedent," Breyer said.

The photographers' attorney James Bartolomei of the Duncan Firm said his clients were likely to appeal. Instagram's parent company Facebook declined to comment, and its attorneys Ragesh Tangri and Allyson Bennett of Durie Tangri didn't immediately respond to a request for comment.

The plaintiffs, led by photographers Alexis Hunley and Matthew Brauer, filed the class-action complaint in May, alleging Instagram's embedding "scheme" encourages "widespread" copyright infringement from websites like Buzzfeed, HuffPost, and Mashable by inducing them to display their pictures without compensating copyright owners.

Instagram moved to dismiss the complaint in July, arguing that it could only be liable for the secondary infringement if the sites directly infringe, and that they don't infringe under the server test because they don't host and transmit the images from their own servers.

Breyer agreed with Instagram on Friday that those who use the embedding tool don't violate copyright law based on the server test.

"Because they do not store the images and videos, they do not 'fix' the copyrighted work in any 'tangible medium of expression,'" Breyer said. "Therefore, when they embed the images and videos, they do not display 'copies' of the copyrighted work."

The court also rejected the photographers' argument that Supreme Court's 2014 decision in American Broadcasting Cos. v. Aereo Inc on retransmitting television signals contradicted the server test. Breyer said Aereo addressed a different part of the Copyright Act with "ambiguous" language: its public performance right, as opposed to the public display right.

"That explains why, years after Aereo, the Ninth Circuit continues to apply" the server test, "including in an opinion published just this month," Breyer said.

Breyer said the photographers could file an amended complaint within 30 days.

The case is Hunley v. Instagram LLC, U.S. District Court for the Northern District of California, No. 3:21-cv-03778.

For Hunley: James Bartolomei of the Duncan Firm, Solomon Cera of Cera LLP, Todd Friedman of the Law Offices of Todd M. Friedman PC, Bryan Hoben of Hoben Law

For Instagram: Ragesh Tangri and Allyson Bennett of Durie Tangri

Read more:

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Retired attorney's skyline photo copyright claims revived by 9th Circuit

Manhattan judge rejects 'server test' for internet copyright infringement

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Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets. Reach him at