Another post about embedding photos using Instagram’s API!

As we have written about here and here, in April and June of this year, two judges sitting in the Southern District of New York issued conflicting decisions interpreting Instagram’s Terms of Use (TOU) and platform policies. The cases presented an identical fact pattern: a professional photographer posts an image on her public Instagram account: an online publication, without permission from the photographer, uses instagram’s API to display the photo within an article; the unhappy photographer sues for copyright infringement; and the news organization moves to dismiss, arguing that the use was fully licensed based on instagram’s TOU and policies.

In the earlier case (Sinclair v. Mashable), Judge Kimba Wood granted the defendants' motion to dismiss, concluding that, pursuant to Instagram's TOU and platform policies: (1) instagram users grant to Instagram broad, sublicensable rights to exploit the photos and other content the users post on their public Instagram pages, and (2) Instagram sublicenses to third parties the right to embed that user content on third party websites via Instagram's embeds API. Approximately six weeks later, Judge Katherine Polk Failla (in McGuckin v. Newsweek) reached the opposite conclusion and denied the defendant’s motion to dismiss. While she agreed with Judge Wood that users of Instagram grant a broad content license to Instagram which would enable Instagram, should it so choose, to sublicense rights to third parties, Judge Failla found, on the limited record before her on a 12(b)(6) motion (and drawing all inferences in favor of the plaintiff), that Instagram's terms and policies did not "expressly grant[] a sublicense to those who embed publicly posted content" and that there was insufficient evidence in the pleadings of an implied sublicense. In reaching this conclusion, Judge Failla acknowledged that "Instagram’s various terms and policies clearly foresee the possibility of entities such as Defendant using web embeds to share other users’ content" and that "it may be possible to read Instagram’s various terms and policies to grant a sublicense to embedders." (For a deeper dive into the arguments for and against interpreting Instagram's TOU and policies as granting a sublicense, see this post.)

Last week, Judge Wood granted the plaintiff's motion for reconsideration in the Sinclair case and held that “in light of the persuasive authority of McGucken, and in order to correct clear error, the Court holds that Plaintiff’s copyright claim against [defendant] Mashable cannot be dismissed on the basis of Mashable’s sublicense defense on the record presently before the Court.” While she affirmed that Instagram users grant broad sublicensable rights to Instagram, she concluded that Instagram's terms of use were susceptible to more than one interpretation as to whether Instagram, in fact, grants a sublicense to third party users of instagram's API.

So, for now, the results in these cases are harmonized:

In essence, both courts are saying that further factual development is required to properly interpret instagrams TOU and policies. So the fight continues. However, just days after Judge Failla issued her decision, an Instagram spokesperson told Ars Technica that its terms of use do not grant permission to users of its embedding API to display embedded images on their websites without additional permissions from the copyright owners (a development we highlight here). What influence, if any, this statement will have on these lawsuits remains to be seen.

Sinclair v. Mashable, Inc., 2020 WL 3450136 (S.D.N.Y. June. 24, 2020) 

McGucken v. Newsweek, LLC, 2020 WL 2836427 (S.D.N.Y. June 1, 2020)