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Are Your Business’s Posts on Instagram Protected?

Whether you run your own independent photography business, or you operate a virtual online coaching and nutrition business, the reality is, you have an Instagram, and you use that Instagram to market your services and attract clients. In fact, for many businesses, maintaining a publicly searchable account on Instagram to share photos and videos is a necessity for a successful business. Now, imagine the nightmare scenario where Instagram sells one of your images on your business’s Instagram account to a third-party vendor. That would surely be a copyright infringement and you as the business owner would have a viable and enforceable claim against that third party for copyright infringement, right? Recently, the Southern District for New York has addressed this specific issue, and so far, the answer is less than clear.

Back in April of 2020, a Judge in the Southern District of New York dismissed a plaintiff’s complaint filed against two defendants’ alleging a copyright claim. The plaintiff is a photographer, and Ziff Davis is a digital media and advertising company that owns multiple online brands and print titles. Ziff Davis owns Mashable, a media and entertainment platform that operates the website www.mashable.com.  The plaintiff uploaded an image titled “Child, Bride, Mother/Child Marriage in Guatemala,” in which she owns an exclusive United States copyright, on her public Instagram account. In 2016, Mashable contacted the plaintiff to license the image to showcase on their website. The plaintiff declined the offer. Nonetheless, a few days later, Mashable published an article and included a copy of the image. Mashable was able to do this with relative ease by embedding the content on Instagram to their website. Embedding occurs where a third party publishes content from Instagram’s servers in an Instagram frame on the third-party users’ website. In the complaint, the plaintiff agreed that rather than copying her photograph directly, the defendant posted “embed code” on its site which embedded the image in its article. The reality is, internet platforms including YouTube, Twitter, Facebook, Instagram, and LinkedIn provide their users with embed code, with which users may embed their content either on the social media platform or on other sites. Users have control to restrict or prevent embedding of their content if they designate their content as private.

The governing document central to the dispute is Instagram’s “Terms of Use.” When the plaintiff, and any other individual or business that enters into a contract with Instagram, accepts the Terms of Use, they are licensing to Instagram any photo they share while their account is set to public. Images may be sub-licensed by Instagram to a third-party user of Instagram’s services. Additionally, the defendants cited to Instagram’s “Platform Policy” which states that Instagram “provides the Instagram application programming interface (“API”) to help broadcasters and publishers discover content, get digital rights to media, and share media using web embeds.” The judge agreed with defendants and affirmed that the use of a public Instagram photo as embedded in an article on a third-party website is covered by Instagram’s Terms of Use.

                However, last week, the Southern District in New York reconsidered its ruling in Sinclair v. Ziff Davis, LLC after a different judge in the same district addressed the same issue but ruled in the opposite. Earlier this month in McGucken v. Newsweek LLC, the court refused to dismiss the photographer’s copyright infringement claims based on Instagram’s Terms of Use, despite the defendant relying on the Sinclair decision in their argument.

Upon reconsideration, the judge reversed the earlier opinion and instead denied Mashable’s motion to dismiss plaintiff’s second amendment complaint. Relying on McGucken, the District Judge reasoned that there are various interpretations of Instagram’s Terms of Use and Platform Policy. Upon reconsideration, the court agreed with the earlier opinion that the plaintiff in Sinclair agreed to the Terms of Use and by doing so, authorized Instagram to sub-license her public content. However, the court did not find evidence that Instagram had exercised this right by extending a license to Mashable, the defendant. The earlier opinion did not give full force to the requirement that a license must convey the licensor’s explicit consent to use a copyrighted work.

Then, on June 4, 2020, Instagram publicly clarified that its policies do not grant a blanket license to API users to embed public third party content. The social media tycoon stated “Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law.” This declaration by Instagram is a victory for business owners who use public facing Instagram accounts and provides an answer to the possible interpretations the court alluded to on reconsideration in Sinclair with respect to Instagram’s Terms of Use. Now, business owners who upload content on their Instagram have a powerful tool in their toolbox when it comes to fighting copyright violations.