Plaintiff – a professional photographer – sued website Mashable and Mashable’s owner after the website used HTML Instagram provides to embed one of plaintiff’s photos on Mashable. Defendants moved to dismiss, claiming they had rights to embed the photo under Instagram’s terms of service. The court agreed and dismissed the copyright infringement claim. Embedding Instagram photos on the website was not infringement.
Mashable embedded anyway
Before the dispute began, Mashable had first tried getting a license from plaintiff to use one of her photographs is a story about female photographers. It offered plaintiff $50 for the rights, but plaintiff refused. A few days later, Mashable used Instagram’s embed code to display the image on Mashable anyway.
Was this a server test question?
The embed code on Mashable caused the image to appear when one would visit the Mashable page by pulling the image data off of the Instagram server. Other cases have referred to this and similar technologies as “inline linking”. Almost 13 years ago, in the case of Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), the Ninth Circuit indicated strongly that inline linking did not cause copyright infringement problems because the process did not involve making a copy of the image, but instead just called it from the original server. From this notion came the “server test” articulated in that case.
A few months before the Perfect 10 v. Amazon decision, a district court in Texas (in the case of Live Nation Motor Sports, Inc. v. Davis, 2006 WL 3616983 (N.D.Tex., December 11, 2006)) had stopped a website owner from pulling in audio data from another server and appearing to stream it from his website.
And just a couple of years ago, another court in the same district as this case involving Instagram declined to adopt the Ninth Circuit’s “server test,” instead finding that embedding an image of Tom Brady in a tweet on a website was an unauthorized infringement of that plaintiff photographer’s right under the Copyright Act to display the photo. See Goldman v. Breitbart News Network, LLC, 302 F.Supp.3d 585 (S.D.N.Y. 2018).
Embedding Instagram photos on website was not infringement because of license
Though the underlying conduct in this case was very similar to that in Goldman v. Breitbart, the court’s decision here did not even cite that opinion. And it did not need to because the legal basis on which it decided this case was different.
The message for Instagram users – your photos may end up on websites
The simple message for users of Instagram (and there are a lot of them) is to be aware that by uploading photos to Instagram and making them publicly available, you are authorizing Instagram to let others display those photos on third party websites. Posting to Instagram and making photos publicly viewable is, quite possibly, posting them to be viewed by a much wider audience than the Instagram community. Under the rule of this case,
embedding Instagram photos on a website is not infringement.
Sinclair v. Ziff Davis, LLC 2020 WL 1847841 (S.D.N.Y., April 13, 2020)