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.