Don’t abandon your photos online

DON'T ABANDON your photos online. That's the message of a ruling handed down in a US Federal court on 13 April. It holds that once you put a picture on social media, anyone can "embed" it to illustrate their online story.

Woman with Stephanie Sinclair

The mother of a workshop participant in Samburu County, Kenya with Too Young To Wed founder Stephanie Sinclair

The message is, to quote a recent update to the NUJ's Freelance Fees Guide on "The hazards of social media": "Publicising your work on social media... can be equivalent to leaving a banknote stapled to a park bench... you know what's going to happen."

On 11 March 2016 approached photographer Stephanie Sinclair to ask her permission to use a photo entitled "Child, Bride, Mother/Child Marriage in Guatemala". She also runs a charity called Too Young To Wed, which campaigns against child marriage worldwide. She has had photo-essays on this in, for example, the New York Times.

Stephanie had uploaded the photo to her Instagram account, which was then public. Mashable offered her $50 to license it. She refused.

A few days later, Mashable published an article on women photographers - with Stephanie's photograph. She sued Mashable and its parent company Ziff Davis. This month the Southern District Court of New York - a Federal court - ruled that her infringement claim should be struck out.

Crucially, what Mashable had done was to "embed" Stephanie's photo on its website. What readers saw on Mashable's website was a "frame" filled with a chunk of Instagram's website. The photo they saw was on Instagram's server computer.

Contracts within contracts

The court accepted Mashable's argument that Stephanie had licensed this use - because she had accepted Instragram's terms and conditions, which granted the company the right to sublicense all photos and other works uploaded by its users. The court did so despite the fact that this reading of her contract with Instagram depended on reading "nested" documents - those that were "incorporated by reference" in the terms and conditions.

The same argument would apply to most online services - at least in cases brought in the Southern District of New York. All the terms and conditions that the Freelance has read include something like a right to sub-licence. The lawyers' goal is for social media sites to cover themselves for their normal business - showing work that users upload to other users, as intended.

This court's interpretation does seem... generous. It also ruled that Stephanie had a case only against Mashable, not its parent company, despite those nested terms and conditions referring to Ziff Davis documents. The Freelance has contacted Stephanie to ask whether she has plans to appeal.

Not all infringers can use this

Not all uses made of photos posted on social media are affected. For example Haitian photographer Daniel Morel won $1.2 million from Getty and Agence France Presse. They had downloaded his photos - posted to Twitter by someone else who had downloaded them from Daniel's own Twitter feed, as it happens. The copies they sold were not embedded. The Freelance is still trying to find out whether Daniel has seen any money from his court award.

30 April2020


Bryan D. Hoben, representing Stephanie Sinclair, responds: "This week, co-counsel James Bartolomei and I filed a motion for reconsideration based on the judge having overlooked several fact issues, including the Section A-11 of the Platform Policy, which had the effect of wrongfully depriving Ms. Sinclair of the benefit of undergoing the discovery process and a jury determination on those issues. Motions for reconsideration are overwhelmingly denied by trial courts, but are generally used to preserve the record on certain issues for an eventual appeal. Ms. Sinclair remains undecided on whether she will seek an appeal on this matter."

He observes that "Professional photographers have been wary for years about the potential for their work to be unjustly exploited through the Instagram platform, by Instagram itself (as evidenced by the 2012 Terms of Use update saga) or by unscrupulous publications like the Mashables of the world who seem hellbent on removing the Photo Budget line item."