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Messaging app renounces photo embedding

Instagram crosses over

Facebook/Instagram promotional image featuring a suspension bridge

Crossing that bridge...

THE MESSAGING app Instagram this week apparently crossed the water on copyright. On 4 June a spokesperson for its owner Facebook told Ars Technica: "While our terms allow us to grant a sub-license, we do not grant one [to embed photos]... Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law."

This follows two lawsuts by photographers against media companies. Each had posted a photo to Instagram, only to see it "embedded" in articles without payment or permission. What readers saw on the publications' websites were "frames" filled with a chunk of Instagram's website. The copies of the photos that they saw were on Instagram's server computer.

On 13 April Judge Kimba M. Wood told Stephanie Sinclair that she could not sue Mashable for embedding one of her photos on its site. Central to the ruling was Mashable's claim that Stephanie had licensed the 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.

But on 1 June, Judge Katherine Polk Failla - in the same Federal court circuit, the Southern District Of New York - told Elliot McGucken that he could go ahead and sue Newsweek for embedding a photo.

Elliot McGucken is a photographer who focuses on landscapes and seascapes. On 13 March 2019 he posted on his Instagram account a photograph of an ephemeral lake that had appeared in Death Valley, California. The following day, Newsweek published an article about the ephemeral lake, embedding his Instagram post.

On 1 April 2019 Elliot registered the photograph with the United States Copyright Office. Two days later he sent a "cease and desist" letter to Newsweek, requesting that it remove the photograph. Newsweek had not removed the photograph or taken down the article by 13 October 2019. He filed a lawsuit for copyright infringement on 17 October.

On 1 June Judge Polk Failla ruled that "the court cannot find at this stage that defendant acted pursuant to a valid sublicense." She remarked that "insofar as Plaintiff contends that Instagram lacks the right to sublicense his publicly posted photographs to other users, the Court flatly rejects that argument [but] there is no evidence before the Court of a sublicense between Instagram and Defendant." (It's important to remember that this was a hearing on a motion to throw the case out, not on the case itself.)

Newsweek argued, in the alternative, that its use was "fair use" in US law. One of the tests for "fair use" is that the use made of the work be "transformative" - rather than straight-up copying. Newsweek claimed it "took a photograph that was intended to be 'fine art landscape photography' and transformed it into news or commentary". Nope. The court did grant Newsweek's motion to dismiss the claims for "contributory and vicarious infringement" - such as encouraging others to infringe Elliot's copyright.

Then came the bombshell: Facebook's statement three days later that it provides no licence to embed photographs. When on 6 June the Freelance was hunting for the image with this article, we indeed found a statement that publications must "always have written approval from an Instagram user before sharing their content".

It does rather appear that two judges in the same court circuit have issued contradictory rulings: "Wow. That is going to blow up the Sinclair case," James Grimmelmann, Professor of Law at Cornell Tech, told Timothy B. Lee at Ars Technica. The Freelance has asked Stephanie Sinclair and her lawyers for comment.

Despite these developments, we reiterate our advice in the 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."

11 June 2020

Through her laywers, Stephanie Sinclair says she "was pleased to see Instagram publicly affirm that it never intended its API embedding terms and conditions (its 'Platform Policy') to grant API users a sublicense to embed user photos outside of the Instagram platform". She "has steadfastly taken this position since the inception of her lawsuit against Ziff Davis / Mashable for copyright infringement. Regardless of any effect this confirmation may have on that case, our client welcomes the opportunity to educate content creators everywhere about protecting their livelihood by asserting their rights and combatting the unauthorized display of their work."

16 June 2020

The Internet Archive announced that "the National Emergency Library will close" today, "returning to traditional controlled digital lending". As noted above, the "library" differs little from so-called "controlled digital lending", which is not "traditional" but an attempt to rewrite the law.

In response, anti-copyright types launched attacks - notably on Twitter, wishing comic book writer and screenwriter Chuck Wendig dead. He had no part in the lawsuit, but had commented in public that the IA had "opened wide, free access to books that they do not have the rights to distribute".