360Photography

A Manhattan federal court has dismissed professional photojournalist Stephanie Sinclair’s copyright claim against digital media website Mashable, ruling that it did not violate her copyright by embedding one of her Instagram posts on its website. The legal issue arose in 2016 when Mashable published an article on female photographers whose work includes the topic of social justice, putting Sinclair at #9 on its list.

According to court documents, Mashable contacted Sinclair in March 2016 and offered to pay $ 50 to license one of her images for use in its article on female photographers. Sinclair declined the offer, so Mashable instead embedded an Instagram post of the image that Sinclair had published on her public Instagram account.

Fast-forward to January 2018 when, according to the court documents, Sinclair contacted Mashable and demanded that they remove the embedded post from the article on the grounds of copyright infringement. Mashable refused to remove the Instagram post and 10 days later, Sinclair filed a copyright lawsuit against the publication and its parent company Ziff Davis, LLC.

The lawsuit raised questions over Instagram’s Terms of Service, its right to grant sublicenses for images uploaded to its platform, and whether sharing and embedding public social media posts without permission or a direct image license constitutes copyright infringement.

Instagram states in its Terms of Use that while it does not claim ownership of a user’s images, they grant the company a license to use it when they upload the content to the platform. Instagram says that when a user uploads images to its website…

‘…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.’

Mashable argued that based on that Terms of Use, it had a valid sublicense from Instagram that allowed it to embed the image post on its website. The defendant argued, among other things, that:

‘…because Plaintiff uploaded the Photograph to Instagram and designated it as “public,” she agreed to allow Mashable, as Instagram’s sublicensee, to embed the Photograph in its website.’

Sinclair’s legal claim countered this, according to court documents, which cite multiple arguments, including a claim that because Mashable didn’t get a direct image license from the photographer, it shouldn’t have been able to get a sublicense for the content from Instagram. The court disagreed with that argument, however, with U.S. District Court Judge Kimba Wood noting:

‘Plaintiff’s right to grant a license directly to Mashable, and Instagram’s right, as Plaintiff’s licensee, to grant a sublicense to Mashable, operate independently. Mashable was within its rights to seek a sublicense from Instagram when Mashable failed to obtain a license directly from Plaintiff—just as Mashable would be within its rights to again seek a license from Plaintiff, perhaps at a higher price, if Plaintiff switched her Instagram account to “private” mode.’

As well, Sinclair had argued that it is ‘unfair’ that a platform like Instagram is able to force professional photographers to choose between keeping their accounts private or allowing the company to sublicense their publicly shared content because it is ‘one of the most popular public photo-sharing platforms in the world.’

Judge Wood acknowledges the nature of this issue, but ultimately states that:

‘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. But by posting the Photograph to her public Instagram account, Plaintiff made her choice. This Court cannot release her from the agreement she made.’

The copyright claim was ultimately dismissed, a conclusion that contrasts the ruling from a New York court in early 2018 on the case of an embedded tweet that featured an image of athlete Tom Brady.

In that case, the court found that embedding such tweets may constitute copyright infringement and the fact they were uploaded to a third-party server like Twitter didn’t change that. The basis of the latest ruling is different, however, focusing on the terms of use the photographer agreed to rather than the ‘server test’ used in the 2018 copyrighted tweet case.

Both of these legal claims follow a different legal case from 2007 in which the precedent was set for how the Internet of today operates: that a person or company who embeds content hosted by a third-party source like Facebook or Twitter are not in violation of copyright, but rather that the hosting company itself is liable.

DPReview contacted Mickey Osterreicher, NPPA’s general counsel, for comment. He had the following to say about this New York ruling:

‘I have not had an opportunity to review the court’s opinion and order in this case so I do not feel it appropriate for me to comment. I will repeat something that NPPA has stressed for many years – photographers read and understand the terms of service or the terms of use on each and every social media platform before agreeing to them or posting on those sites. They also must continue to vigilantly monitor those terms as they are frequently changed and updated.’

Articles: Digital Photography Review (dpreview.com)