Photo of Amber Harezlak

A federal district court in New York held that a photographer failed to state a claim against digital-media website Mashable for copyright infringement of a photo that Mashable embedded on its website by using Instagram’s application programming interface (API). The decision turned on Instagram’s terms of use.

Mashable initially sought a license from the plaintiff, a professional photographer named Stephanie Sinclair, to display a photograph in connection with an article the company planned to post on its website, mashable.com. The plaintiff refused Mashable’s offer, but Mashable, nevertheless, embedded the photograph on its website through the use of Instagram’s API.

Instagram’s terms of use state that users grant Instagram a sublicensable license to the content posted on Instagram, subject to Instagram’s privacy policy. Instagram’s privacy policy expressly states that content posted to “public” Instagram accounts is searchable by the public and available for others to use through the Instagram API.
Continue Reading S.D.N.Y.: Public Display of Embedded Instagram Photo Does Not Infringe Copyright

As regular readers of Socially Aware already know, there are many potential traps for companies that use photographs or other content without authorization from the copyright owners. For example, companies have faced copyright infringement claims based on use of photos pulled from Twitter. Claims have even arisen from the common practice of embedding tweets on blogs and websites, and we have seen a flurry of stories recently about photographers suing celebrities for posting photos of themselves.

Now there is another potential source of liability: the appearance of murals in the background of photographs used in advertisements. In at least two recent cases, automotive companies have faced claims of copyright infringement from the creators of murals painted on buildings that appear in the backgrounds of ads.

Most recently, in a federal district court in the Eastern District of Michigan, Mercedes Benz sought a declaratory judgment that its photographs, taken in Detroit (with permits from the city) and later posted on Instagram, did not infringe the copyrights of three defendants whose murals appeared in the backgrounds of those photographs.
Continue Reading Insta-Mural Infringement: Public Art in Instagram Ad Leads to Copyright Claim

As consumers increasingly communicate and interact through social media platforms, courts have had to grapple with how to apply existing laws to new ways of communicating, as well as disseminating and using content. Sometimes, however, traditional legal standards apply to these new platforms in a straightforward manner. At least, that is what the court found in Dancel v. Groupon, Inc., a putative class action against Groupon, Inc., alleging that Groupon’s use of images originally posted on the social media site Instagram violated users’ rights under the Illinois Right of Publicity Act (IRPA).

Groupon, a website that offers consumers deals on goods and services, built a widget intended to provide its users a window into businesses for which Groupon offered deals. The widget used Instagram’s API to find photos that Instagram users had taken at particular locations, and then displayed those images under the deals offered on Groupon’s own website.  When a visitor to the Groupon page hovered his or her mouse over the Instagram images, the Groupon user could see the username of the person who posted the photo on Instagram and an associated caption, if there was one.

Dancel, who maintains an Instagram account with the username “meowchristine,” took a selfie of herself and her boyfriend in front of a restaurant and posted it on Instagram with a tag noting the name of the restaurant. Groupon later displayed this photograph, among others, in connection with its deal for the same restaurant.
Continue Reading What’s in a (User)Name?