Looking for Likes: Social Media Post Results in Unintended License to Share Photograph

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A New York federal district court has dismissed a photographer’s copyright infringement claims after finding that the photographer gave Instagram the right to sublicense her photograph to the accused infringer, Mashable, Inc. Mashable used the photograph at issue on its site by embedding a link to an Instagram post published on the photographer’s public Instagram profile. In Sinclair v. Ziff Davis, the court decided that, by including the photograph in a post on her public Instagram profile, the photographer had given Instagram the right to allow users to embed a link to the post under Instagram’s agreements and policies.

Millions of internet users, including news sites, pop culture blogs, and other media outlets frequently discuss content found in publicly accessible posts on social media platforms. These stories often make some version of the posting visible to readers or viewers in order to allow the audience to see the content for themselves. This is especially common for sites discussing posts from social media sites such as Instagram. 

Instagram and other social media sites make it easy to show a publicly available post on a third-party site by including a feature that allows users to “embed” a link to the post. The publicly shared social media post will appear on the third-party site where the link is embedded, even though the information that makes up the actual post is kept on the social media platform’s server. The third-party site is not required to maintain its own copy of the posted content to embed it in an article.

In this case, photographer Stephanie Sinclair posted the photograph at issue on her public Instagram profile. Mashable approached Sinclair and offered her $50 for the right to post Sinclair’s photograph in an article discussing female photographers, but Sinclair declined. Rather than post Sinclair’s photograph in the article, Mashable embedded a link to Sinclair’s public Instagram post. Sinclair demanded that Mashable remove the photograph, but Mashable refused to do so. Sinclair sued Mashable and its parent company, Ziff Davis LLC, for copyright infringement in the United States District Court for the Southern District of New York over its use of her photograph and its posting without her permission.

Mashable moved to dismiss Sinclair‘s complaint under the theory that it had a sublicense to use Sinclair’s photograph from Instagram. It argued that Sinclair gave Instagram a right to sublicense the photograph to Mashable under Instagram’s policies, including its terms of use, platform policy and privacy policy.

Sinclair made several unsuccessful arguments, including that Mashable needed a license directly from Sinclair in order to use the photograph; that Instagram’s terms of use and policies are too complex to interpret without more facts; that Instagram’s agreements and policies were not meant to benefit Mashable and as interconnected documents, could not validly have conveyed a license from Sinclair; that the Instagram policies and terms are too “circular,” “incomprehensible,” and “contradictory” to convey a valid sublicense; that Instagram violated its terms by allowing Mashable to “sell” the photograph; and that the terms unfairly forced Sinclair to choose between greatly reducing the number of people who could see her photograph by staying in “private” mode versus giving Instagram the right to sublicense to others without her permission.

The court sided with Mashable, ultimately finding that Sinclair had “made her choice” by agreeing to Instagram’s terms of use and other policies. Pursuant to Instagram’s policies, Sinclair gave Instagram a right to sublicense her photograph to others by posting her photograph to her “public” Instagram account, including for “embedding” in a third-party article. For this reason, Mashable did not need Sinclair’s permission to embed a link to the public Instagram post containing Sinclair’s photograph on its blog. As a result, Mashable was able to use Sinclair’s photograph without infringing her copyright.

This decision emphasizes the control a social media platform can exert over an author’s work under the platform’s terms and conditions of use and other policies. Despite other decisions suggesting embedding a social media post can be an infringement (see Goldman v. Breitbart News Network, LLC) if an author wishes to retain control over works published on social media platforms, the author must pay careful attention to the permissions granted to such platforms when agreeing to their terms and policies. If you have a question about your website’s terms and conditions as they relate to user-generated content, or the impact a website’s terms and policies may have on your ability as a creator to control who uses your work, you should contact an attorney experienced in copyright and licensing issues.