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Embedded Instagram Photos Ruled Non-Infringing

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The use of Instagram photos and potential copyright infringement stemming from the same is a topic that Traverse Legal has previously considered, particularly in regards to social media influencers. Our attorneys contemplated that news and media outlets have typically been relying upon the fair use defense when posting embedded Instagram photos into articles. Now, in Sinclair v. Ziff Davis, LLC, the Southern District of New York (“SDNY”) has ruled that – pursuant to Instagram’s Terms of Use and Privacy Policy – users give Instagram a license to use all content uploaded to the service, and rights to subsequently sublicense that content to other users to make use of the same. Ultimately, the Sinclair court denied plaintiff’s claim for copyright infringement, iterating that defendant had a license to embed plaintiff’s photo in an online article.

The Sinclair v. Ziff Davis, LLC Decision

In its April 13, 2020 Opinion in Sinclair v. Ziff Davis, LLC (full opinion here), the SDNY dismissed Sinclair’s copyright infringement claim against Mashable and its parent company noting that “Plaintiff granted Instagram the right to sublicense the Photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph. By creating an Instagram account, Plaintiff agreed to Instagram’s Terms of Use.”

The Court went on to explain that “Pursuant to Instagram’s Privacy Policy, Instagram users designate their accounts as ‘private’ or ‘public,’ and can change these settings whenever the wish. All content that users upload and designate as ‘public’ is searchable by the public and subject to use by others via Instagram’s [application programming interface] API. The API enables its users to embed publicly-posted content in their websites. Thus, because Plaintiff uploaded the Photograph to Instagram and designated it as ‘public,’ she agreed to allow Mashable, an Instagram’s sublicensee, to embed the Photograph in its website.”

While plaintiff proffered many arguments in support of its copyright infringement claim – such as that Instagram’s “agreements do not convey a valid sublicense because they are ‘circular,’ ‘incomprehensible,’ and ‘contradictory'” – they were all unsuccessful. The case may not be over just yet, however, as on April 27, 2020 plaintiff filed a Motion for Reconsideration on the dismissal.

What Does Instagram’s Terms of Use and Privacy Policy Say Specifically?

If anything, this SDNY’s decision in Sinclair is a lesson in the importance of reading a website or service’s terms of use and privacy policy. The exact language of Instagram’s Terms of Use regarding its license to user’s content currently reads as follows:

We do not claim ownership of your content, but you grant us a license to use it. Nothing is changing about your rights in your content. We do not claim ownership of your content that you post on or through the Service. Instead, when you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our Service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). You can end this license anytime by deleting your content or account. However, content will continue to appear if you shared it with others and they have not deleted it. 

Separately, Instagram’s Privacy Policy includes this language regarding publicly available content posted to Instagram and Instagram’s API:

Subject to your profile and privacy settings, any User Content that you make public is searchable by other Users and subject to use under our Instagram API. The use of the Instagram API is subject to the API Terms of Use which incorporates the terms of this Privacy Policy.

Altogether, Instagram’s Terms of Use and Privacy Policy (among other legal agreements, such as the API Terms of Use) clearly spell out that (1) Users grant a (very broad) license to Instagram for use of public content; and (2) By making public content, other users may utilize Instagram’s API to embed public content onto their websites.

What Can I Do to Protect the Rights to my Instagram Photos?

The easiest and most obvious answer to this question is: make your Instagram private. However, that suggestion is laughable for many, especially considering the connectivity Instagram provides between users (particularly between the general public and celebrities) and how lucrative Instagram influencing has become. If putting your Instagram account on private is simply not an option, the following tips can be useful to protecting your copyright rights to Instagram posts:

  1. Apply for a registered copyright. Having a copyright registration for the photos and videos featured on your Instagram profile can only bolster your ownership rights to the same.
  2. Diligently monitor use of your content. The more you police use of your content, the more likely you are to catch unauthorized, infringing use.
  3. Consider licensing your photos directly. One detail of the Sinclair case is that plaintiff had been approached by defendant for a license to use plaintiff’s photo in exchange for payment, but plaintiff declined. If you are approached by another user to pay for a license to use your content, it may be easier (and cheaper) to accept the offer and avoid bringing claims of copyright infringement later.

Remember: The Sinclair Decision Isn’t Binding Precedent

It is important to note that this decision is not binding precedent on the rest of the Country, but rather only persuasive authority. That means if another, similar dispute were to be brought within a different jurisdiction, the outcome may also be different. Unless and until the Supreme Court weighs in, the issue of whether utilizing embedded Instagram photos in an online article constitutes copyright infringement will be one to watch in the coming months and years.

UPDATE: Dismissal Reversed

As of June 24, 2020, the SDNY granted Plaintiff’s motion for reconsideration and reversed its dismissal in Sinclair v. Ziff Davis, LLC, finding insufficient evidence of any sublicense to Mashable to embed Plaintiff’s photograph on Mashable’s website. While the SDNY still recognized that Plaintiff had agreed to Instagram’s Terms of Use, which permits Instagram to sublicense public content, the court found that there was no evidence that Instagram had exercised this right to extend a sublicense to Mashable.

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