On April 13, 2020, New York District Court delivered a landmark judgement concerning the applicability of terms and conditions of social media platforms like Instagram on its users in the event of alleged copyright infringement. Stephanie Sinclair, a professional photographer brought out a copyright infringement suit against Mashable Inc. and its parent company, Ziff Davis, LLC alleging infringement for using Sinclair’s copyrighted photograph on Mashable’s website without license.
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The District Court ruled that there was no copyright infringement on part of Mashable where it had embedded one of the Instagram’s post from Sinclair’s public account after they failed to get a license for the same photograph directly from Sinclair.
The District Court noted that as per Instagram’s terms and conditions, by posting content on Instagram, its users grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license as regards the content shared by the user, however subjecting it to privacy policy of the website. Pursuant to the aforesaid policy of Instagram, the Court held that Instagram validly exercises the right to grant sub-license to anyone to post the embedded photograph using the API provided that the content offered is from an account designated as public and is searchable by public and subject to the use of Instagram’s API. Therefore, the Court concluded that relying on the terms and conditions of Instagram, Mashable posted the embedded photograph on their website from Sinclair’s Instagram account.
The District Court held that the right of licensing by Sinclair is independent from the right of Instagram to sub-license it to Mashable and it was also held that Sinclair by posting her photograph on Instagram through her public account had made her decision to be governed by the terms and conditions of the social media website. Therefore, no infringement was noted on part of Mashable.
While this case recognized the implications of terms and conditions of a website, it does not give a blanket immunity to all posts published through a public account. In Goldman v. Breitbart News Network LLC et al., 1:17-CV-03144 (S.D.N.Y. February 15, 2018) delivered by the same Circuit, the Court held that embedding amounts to copyright infringement. The facts of Goldman are that Justin Goldman, a professional photographer, accused online publications of copyright infringement for publishing articles that linked to a photo of NFL star Tom Brady. Goldman took the photo, which went viral and many users tweeted it, and the news organizations embedded a link to those tweets in their coverage. Goldman alleged that said those stories which used the embed tweets of his photographs infringe his copyright. In this case, Goldman never tweeted the photograph himself.
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