The Law and Business of Social Media
May 04, 2020 - Terms of Use, Copyright, Litigation

S.D.N.Y.: Public Display of Embedded Instagram Photo Does Not Infringe Copyright

S.D.N.Y.: Public Display of Embedded Instagram Photo Does Not Infringe Copyright

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, 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.

The plaintiff conceded that she was bound by Instagram’s terms of use but argued, among other things, that the sublicense right was invalid because it was “created by a series of complex, interconnected documents.” The court found this argument unpersuasive, stating that “[w]hile Instagram could certainly make its agreements more concise and accessible, the law does not require it to do so.”

This case serves as a good reminder of the importance of website terms of use in protecting website operators and their customers. Unfortunately, because the court determined that Instagram had granted Mashable a valid sublicense, the court did not reach a question that is still open in the Second Circuit: whether embedding an image on a website constitutes copyright infringement. As we previously reported a federal court in New York held that embedding a Tweet in blogs and news articles constituted infringement. That case settled following an appeal. Courts in California, however, have reached a different conclusion.