On May 19, 2021, two photographers initiated a class action lawsuit against social media giant Instagram in the Northern District of California for “encouraging, inducing, and facilitating third parties to commit widespread copyright infringement” since July 2013. The root of the conflict is Instagram’s in-app embed tool. In the complaint, “embedding” is defined as the process of copying the unique hypertext markup language (“HTML”) code assigned to each photo and video published to the Internet, and the insertion of that code into a target webpage or social media post so that photo or video appears within the target post. Using Instagram’s embed tool, third parties can allegedly copy the HTML code of an Instagram user’s post and paste it into a third party’s website, allowing the Instagram photo or video to be displayed on the third party website via the Instagram user’s account.

The plaintiffs complain that this tool encouraged third parties to display copyrighted works without any license or permission from copyright owners and misled the public into thinking all were free to embed such works through Instagram, “like eating for free at a buffet table of photos.” However, the photographers contend that things “dramatically changed” in June 2020 when Instagram publicly admitted that third parties, in fact, need a license or permission from copyright holders to embed copyrighted works.

This case is Alexis Huntley, et al., v. Instagram, LLC, Case No. 3:21-cv-03778 (N.D. Cal., May 5, 2021).