In early 2018, Stephanie Sinclair, a professional photographer brought a copyright suit against Mashable, Inc. and its parent company, Ziff Davis, LLC. Stephanie alleged the defendants infringed on her copyright regarding one of her photographs at least because Stephanie posted said photograph to her Instagram profile wherein Mashable then displayed the photograph on one of their articles.
In discovery, Mashable created an article, and displayed Stephanie’s photograph as part of the article by virtue of embedding the photograph from Stephanie’s Instagram. It is critical to note, as opposed to directly downloading and posting and/or copying and pasting Stephanie’s photograph to Mashable’s article (which may otherwise be knowing as uploading), Mashable embedded her photograph to the article via an Instagram interface.
From the standpoint of this case, embedding may be defined as a simple process wherein a webpage author can display an image, video and/or other media source to the author’s webpage by virtue of directly linking the source of such media. The process of embedding technically allows for the author’s website to display such media without the author’s website needing to “host,” own, or in some cases, have a license for the media.
An example of embedded media may be found here. Note, that upon hovering over or selecting embedded media, a user may be directed to Instagram’s webpage or have Instagram’s information displayed above such media.
The case (which can be found here) was ultimately dismissed in full albeit many arguments made by Stephanie. The ruling came generally from the following discovery: (1) Instagram’s terms and conditions state content posted to Instagram grants Instagram (and subsequently Instagram’s embedding interface) a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to such content, (2) Stephanie agreed the above portion of Instagram’s terms and condition and (3) Mashable properly utilized Instagram’s embedding interface to display Stephanie’s photograph. Thus, a generalized conclusion could be made that Mashable was not in fact infringing on Stephanie’s copyright as Mashable was utilizing a photo licensed by Instagram and interface owned by Instagram.
Now recently, a similar suit was filed by Elliot McGuken, a photographer who took a photo of a lake and posted the photo to his Instagram page. He found himself in a near identical situation to Stephanie wherein the day after Elliot posted the photograph, he found the photo displayed on a Newsweek LLC, article. The suit outlines the fact that Elliot is suing for copyright infringement and the fact that Newsweek properly embedded Elliot’s photograph from Instagram.
In contrast to Stephanie’s case, Elliot’s case was not dismissed in full and Elliot may have an opportunity to legally claim prayer for relief in form of damages, which may be monetary. Reportedly, an Instagram representative has made comment stating that the use of their embedding interface does not directly extend Instagram’s license of content to those seeking to utilize the interface, which creates a sharp contrast for the cases as described above.
More information is sure to emerge on not only the status of Elliot McGuken vs. Newsweek, LLC, but also the use of Instagram’s embedding interface and possibly the copyright implications that may arise from its use.
Instagram is the one of the largest photograph and video-sharing social media platforms in the world. As Instagram releases more information on the subject, it is sure to be a topic for online news, blog or media outlets to pay close attention to in order to ensure compliance with copyright laws, and a subject for photographers who use Instagram to follow to ensure their rights are protected.