Social media, such as TikTok, Twitter, YouTube, Facebook, Instagram and Snapchat, allows us to instantly share images and videos with a large number of people.
Unfortunately, when it’s so easy to share a photo or video at the click of a button, it’s easy to forget that there may be legal consequences, even when you own all of the rights to that photo or video.
Earlier this month, a federal court dismissed a copyright infringement lawsuit brought by a professional photographer, Stephanie Sinclair, against Mashable.
Sinclair had posted a copy of her photo titled “Child, Bride, Mother/Child Marriage in Guatemala” to her Instagram account, which is a “public” account, viewable by anyone.
An employee of Mashable emailed Sinclair, offering $50 for the right to use the photo in an article about female photographers to be published on Mashable’s website, but Sinclair didn’t accept the offer.
Several days later, Mashable published that article and included a copy of Sinclair’s photo, using a technical process called “embedding” to incorporate the photo into the article.
Embedding allows a website to incorporate on its website content that is located on someone else’s server. When you visit a website with an “embed code,” your browser is directed to retrieve the embedded content from the third-party server and display it on the website you’re viewing.
Mashable embedded in its article the copy of the photo that Sinclair had uploaded to Instagram. Instagram uses a service called application programming interface (API) to enable users to access and share content posted by others whose accounts are set to public mode.
Instagram users can then use the API to embed Instagram posts in their own websites, which is what Mashable did with Sinclair’s image.
Sinclair demanded that Mashable remove her photo from its website and pay her damages for the infringement of her copyright, but Mashable refused. Sinclair then filed a lawsuit against Mashable for copyright infringement.
Mashable argued that its use of Sinclair’s photo wasn’t infringing because it used the photo pursuant to a valid sublicense from Instagram.
When Sinclair created her Instagram account, she agreed to Instagram’s Terms of Use, which say that, by posting content to Instagram, the user “grant[s] to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content that you post on or through [Instagram], subject to [Instagram’s] Privacy Policy.”
The Privacy Policy makes clear that when users choose to designate their content as “public,” that content is searchable by the public and also subject to use by others via Instagram’s API.
This means that when Sinclair uploaded her photo to Instagram and designated it as “public,” she agreed to allow anyone, including Mashable, to embed the Photograph in its website, as Instagram’s sublicensee.
Sinclair disagreed with this analysis, arguing, among other things, that Mashable’s failure to obtain a license to use the photo directly from her means that Mashable shouldn’t be able to obtain a sublicense from Instagram and that the agreements between Instagram and Plaintiff can’t give Mashable the right to use the photo because Mashable isn’t an intended beneficiary of any of the agreements.
She also claimed that her authorization to Instagram to sublicense the use of her photo is invalid because it was created by a series of complex, interconnected documents that are “circular,” “incomprehensible,” and “contradictory.”
In response to Sinclair’s claim that it’s unfair for Instagram to force a professional photographer to choose between “remain[ing] in ‘private mode’ on one of the most popular public photo sharing platforms in the world,” and granting Instagram a right to sublicense her photos, the court responded:
Unquestionably, Instagram’s dominance of photograph- and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that Plaintiff’s dilemma is a real one. But by posting the Photograph to her public Instagram account, Plaintiff made her choice. This Court cannot release her from the agreement she made.
After reviewing all of the arguments, the court determined that Mashable had not infringed Sinclair’s rights.
This case emphasizes the importance of reading – and understanding – all of the terms of use and other policies you agree to when posting to a social-media site.
If you’re posting a video or photo shot by someone else, you may be putting yourself at risk to be sued for copyright infringement, violation of the right of publicity, and other claims. We’ll discuss this in a future Alert.
Please feel free to contact us if you have any questions or concerns about posting photographs, videos or other materials on social media, or materials others have posted about you or using your intellectual property.
Photo by dole777 on Unsplash
