In a major blow to web publishers, Judge Kimba Wood of the Southern District of New York reversed her own ruling from just two months ago and revived a photographer’s copyright suit against Mashable, Inc. (Mashable), over Mashable’s use of an embedded Instagram photograph on its website.
In April 2020, Judge Wood dismissed a copyright suit filed by Stephanie Sinclair, a professional photographer, against Mashable and its parent company, Ziff Davis, LLC. Judge Wood found that Mashable’s use of one of Sinclair’s photographs through Instagram’s embed feature was pursuant to a valid sublicense from Instagram. The court relied on Instagram’s various terms and policies in reaching this decision, including Instagram’s Terms of Use, Privacy Policy and Platform Policy.
Then in early June, in McGucken v. Newsweek, a different judge in the same court reached an opposite decision in a similar case involving a web publisher’s use through Instagram’s embed feature of another photograph posted on Instagram. U.S. District Court Judge Katherine Failla ruled that while Instagram has the right to sublicense content, such as the plaintiff’s photographs, published to a public account on its platform, “[T]here is no evidence before the Court of a sublicense between Instagram and Defendant.”
Following Judge Failla’s surprising decision, Sinclair moved for reconsideration and Judge Wood revised her earlier opinion from April “in order to correct clear error.” Citing McGucken as the persuasive authority,” the court held that “the pleadings contain insufficient evidence that Instagram exercised its right to grant a sublicense to Mashable.” The court acknowledged that it had not previously given “full force to the requirement that a license must convey the licensor’s ‘explicit’ consent to use a copyrighted work.”
While the court found that there was insufficient evidence that Instagram had granted a sublicense to Mashable to embed public Instagram content based on Instagram’s Platform Policy, Judge Wood reinforced Instagram’s broad right to grant such a sublicense to application program interface (API) users like Mashable based on Instagram’s Terms of Use.
The court did not change its prior holding dismissing the plaintiff’s claim against Ziff Davis, confirming that the fact that Ziff Davis controls Mashable is not sufficient to state a claim of copyright infringement.
To read Judge Wood’s opinion in Sinclair v. Mashable, click here.
Why It Matters: Embedding public content from Instagram and other social media platforms by users of the platforms’ APIs has been a common practice for years. API users have generally relied on the terms and policies established by each platform when embedding public content made available on the platform instead of obtaining separate consent from individual copyright owners. In fact, as noted by the court in both McGucken and Sinclair, Instagram’s Platform Policy expressly states that the Instagram Platform (which includes APIs) is provided “to help broadcasters and publishers discover content, get digital rights to media, and share media using web embeds.” Following the decisions in McGucken and Sinclair, however, users can no longer solely rely on Instagram’s terms and policies to embed Instagram posts from other users. In addition, applying the logic behind the holdings in McGucken and Sinclair, anyone who wishes to embed any public social media content made available by any other platform should specifically look for explicit sublicense or consent language in the platform’s terms and policies. If such language is not included, using such public social media content without separate consent from the copyright owner could be risky, even if the use complies with all the terms and conditions of the platform.