Photographer Unsuccessful in Copyright Case Over Use of Embedded Instagram Photo
A district court in the recent Sinclair case found no copyright infringement by the website Mashable, where it used one of photographer Sinclair’s Instagram photos in an article, even after an unsuccessful attempt to license the photo directly from Sinclair. Sinclair v. Ziff Davis, LLC, and Mashable, Inc., No. 1:18-CV-00790 (S.D.N.Y. April 13, 2020).
Plaintiff Sinclair had a “public” Instagram account and posted a copy of the subject photograph. Defendant Mashable, a digital media and entertainment platform, published on its website an article about female photographers that embedded the publicly posted photo from Sinclair’s Instagram account. Notably, prior to using the Instagram photo, an employee from Mashable contacted Sinclair about licensing the same photo to be used in the article. Sinclair declined Mashable’s US$50 offer to license the use of the photo. Sinclair later demanded that Mashable remove the embedded photograph from their website and demanded compensation. Mashable refused. Sinclair then sued for copyright infringement.
Sinclair argued that Mashable infringed her copyright in the photo since it did not have permission to use the photo. Mashable contended that it had a valid sublicense from Instagram to use the photo and therefore did not infringe Sinclair’s copyright. The court sided with Mashable.
The court held that Sinclair’s right to license the photo directly and Instagram’s right as a licensee to sublicense the photo to Mashable were independent from one another.
Sinclair also contended that the authorization of Instagram to sublicense the photo was invalid because of the complex and interconnected documents which established the rights. While the court agreed that Instagram could make their terms of service and policies more concise and accessible, they were under no obligation to do so.
Lastly, Sinclair argued that it was unfair of Instagram to force a professional photographer to choose between keeping her work “private” on one of the most popular photo sharing apps or to post publicly which would allow Instagram a sublicense to her photographs to users like Mashable. While the court noted this dilemma was very real, the court held that Sinclair had already made her choice by opting to post the photo publicly.
The court also noted that because it held that Instagram had granted Mashable a valid license to display Sinclair’s photo, it did not have to reach the question of unsettled law in the circuit of whether embedding an image is considered a ‘display’ capable of infringing a copyright in an image. That issue was addressed on a motion for summary judgment in Goldman v. Breitbart News Network LLC et al., 1:17-CV-03144 (S.D.N.Y. February 15, 2018), where the court came to the exact opposite conclusion.
In the Goldman case, a different Judge in the same jurisdiction held that the use of embedded Tweets on news media websites featuring a picture of Tom Brady did infringe the copyright of the photographer. The decision for partial summary judgment in favor of the photographer in the Goldman case was highly criticized, and the case ultimately settled outside of court.
By Susan Kayser and Terrance Roberts