By Sean Fitzgerald
Can an online publisher simply embed a photographer’s Instagram post in an online story without paying that photographer or obtaining express permission to do so? Unfortunately, a recent New York district court decision in Sinclair v. Ziff Davis suggests the answer is yes, as long as they do so consistent with Instagram’s various service agreements. While some online publishers have been embedding Instagram posts in their stories for a while, Sinclair is the first court decision that gives legal cover to the practice, leading some photographers to reassess how they use Instagram, and indeed all social media, going forward.
Background
The website Mashable (which is part of Ziff Davis) saw photographer Stephanie Sinclair’s images posted on Instagram and wanted to include one image in a story about female journalists working on social justice issues. Mashable contacted her and offered her $50 to license that image. She refused but Mashable published it anyway by using Instagram’s embedding feature toembed the photographer’s Instagram post within the Mashable story.
Understandably upset, the photographer sued for infringement. Mashable claimed in defense it could do so as a “sub-licensee” of Instagram as defined in Instagram’s Terms of Service Agreement or “TOS”. Instagram’s TOS language is constantly evolving and currently provides as follows:
[W]hen you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our Service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings).
The TOS at issue in the Sinclair case contained similar language, including a right to “sub-license” posted content.
Focusing on the TOS, the New York court ruled that no infringement occurred because (1) the photographer granted Instagram the right to sub-license the photograph, (2) Instagram granted Mashable a sub-license to display the photograph through its embedding option, and (3) by posting the image under Instagram’s “public” setting, the photographer implicitly agreed to allow Mashable, as a sub-licensee, to embed the photographer’s post within the Mashable story.
The Photographer’s Dilemma
Photographers always have to weigh the marketing benefits of social media against the risk of losing control of their work. Perhaps most galling for photographers is that Instagram has a near-monopoly on the social media market when it comes to showcasing and marketing photography and photographers have little real choice but to sign Instagram’s TOS and hope for the best.
The court in Sinclair court noted that dilemma while ruling that ultimately the Instagram TOS controlled:
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.
This court, at least, did not seem to care whether the Instagram TOS amounts to an unfair “contract of adhesion”, given the complete lack of bargaining power that photographers have with Instagram.
How Far Does the Decision Extend?
Sinclair is a disturbing precedent for photographers, though not wholly unexpected, given the breadth of the Instagram TOS. (See an analysis of the TOS here.) Copyright lawyers are now frantically parsing exactly how the decision fits into the already jumbled caselaw regarding copyright and social media. (see more about how this case relates to others here.) Future defendants may also raise fair use defenses that were not raised in Sinclair, thus adding to the uncertainty about this decision and what the future holds.
In the worst case scenario, bloggers, publishers and others will use the legal shelter of Sinclair to justify more widespread embedding of Instagram posts in their editorial stories. Only time will tell how far online publishers extend the practice.
Embedding Instagram posts in purely commercial advertisements are another matter. Instagram’s “Platform Policy”, which sub-licensees must agree to abide by, indicates that publishers such as Mashable must “[o]btain a person’s consent for including their User Content in any ad”.). Unfortunately, determining the difference between editorial and commercial content is not always clear in the online context and each situation may be different.
Embedding vs. Copying
It is worth noting that if Mashable had simply copied Sinclair’s image from Instagram and then pasted the image into its online story (using its own servers to host the image), it would have been held liable for copyright infringement. Mashable skirted liability only because it used the code to embed Sinclair’s Instagram post within the Mashable story, with Sinclair’s post and image itself still hosted on Instagram.
Licensing Problems for Stock Photographers
Photographers who simply want to share work and are not worried about licensing and selling their work commercially may even welcome the additional distribution of their work through sub-licensees such as Mashable. That is their choice.
For photographers who sell and license their work, however,using Instagram is now more problematic. Posting images to Instagram may devalue the future licensing potential of that image over the long term since any sub-licensee such as Mashable can embed the post in editorial content at any time, without consent from the photographer. This fact thus complicates the photographer’s ability to offer an exclusive license to use that image in the future (such as in a product label or ad campaign). Many magazines, for example, require that an image it is considering for print not have run in any competing medium for a certain period of time.
Photographers who license their work may thus want to rethink both what they post to Instagram and how they draft licensing language when licensing images previously posted to Instagram.
Going “Private” or Archiving Posts
To avoid what happened in Sinclair, a photographer can opt to make their personal Instagram account “private”. This is hardly a great solution, however, since the reason most photographers use Instagram is to market themselves and their images to the public at large in the first place. Some photographers (and organizations like NANPA) use commercial “business” or “creator” Instagram accounts for analytics or advertising and do not even have an option to take their account private.
Photographers can also “archive” posts and essentially take them off-line from Instagram going forward. They can “un-archive” that post later and it goes back into their Instagram feed exactly as before.
Written Prohibition of Web Embeds
It is also possible that photographers can protect themselves by including language in their Instagram post prohibiting web embeds. Sub-licensees such as Mashable agree under Instagram’s Platform Policy. https://www.instagram.com/about/legal/terms/api/ Under that Platform Policy, to “[c]omply with any requirements or restrictions imposed on usage of Instagram user photos and videos (“User Content”) by their respective owners.” The Platform Policy also asserts that they “are solely responsible for making use of User Content in compliance with owners’ requirements or restrictions.”
It is hard to tell whether such language would have made a difference to the court in Sinclair, but it can’t hurt. I have personally decided to start adding the following phrase to the end of the written content in my own Instagram posts:
Embedding this post or otherwise using any image in this post on any website or service outside of Instagram is expressly prohibited without my written permission.
If nothing else, it might make publishers such as Mashable think twice about embedding posts without my express permission.
Embedding Watermarks
The safest practice for photographers who post any work online is to add a watermark with a copyright notice. Not only does it help prevent infringers from claiming they acted innocently, but removal of such notice is itself a violation of the Digital Millennium Copyright Act. It does not appear that Sinclair’s Instagram post included any kind of copyright watermark, but the inclusion of such a watermark might have given her another potential legal argument any reproduction outside of
What NANPA is Doing
NANPA has joined with other visual art groups (American Society of Media Photographers, National Press Photographer’s Association, Professional Photographers of America, American Photographic Artists and the Graphic Artists Guild) to collectively ask Instagram (see the letter here) for the following:
- Amend its various user agreements to better protect the rights of photographers and avoid what happened in Sinclair.
- Provide its users with an option to prevent embedding of their work outside of Instagram on an account-wide or individual image basis. YouTube already allows users to prevent their videos from being embedded outside of the YouTube channel it is uploaded to and Instagram should provide users with a similar option.
NANPA is also participating in an Instagram campaign to get Instagram to act as we have requested. Some photographers are also protesting by making their accounts private, if even temporarily. To participate, use the tag @Instagram to send your message directly to Instagram itself. You can download an Instagram-ready image here and an Instagram story-ready image here.
Finally, NANPA is taking additional steps to ensure that photographers who post images to NANPA’s own Instagram account are aware of the risks and uncertainties as well as the benefits. NANPA will also begin inserting language into every Instagram post featuring member images that “e]mbedding this post or otherwise using any image in this post on any website or service outside of Instagram is expressly prohibited without written permission from the photographer”.
Did You Know?
NANPA includes Website and Social Media Policy and Use statements on its website to help nature photographers make informed decisions about participation. We also provide detailed rules in our Facebook Group and specific instructions to Instagram Takeover participants. NANPA members can also access a Digital Millennium Takedown notice to get infringed works removed from online sources—this document is located in our Members Area.
