Last week, the U.S. District Court for the Southern District of New York issued an opinion in Sinclair v. Ziff Davis, LLC et al., 18-cv-790 (April 13, 2020), related to the license rights of posting photographs on Instagram. Stephanie Sinclair, a professional photographer, filed suit against Mashable, Inc. and its parent company, Ziff Davis, LLC, based on Mashable’s use of one of her photographs in an article published by Mashable. Sinclair owns an exclusive United States copyright in the image titled “Child, Bride, Mother/Child Marriage in Guatemala.” She maintains a publicly-searchable website to showcase her photographs to potential clients. Sinclair also maintains an account on Instagram, a photograph- and video-sharing social media platform.
Sinclair posted a copy of the photograph on her Instagram account, which was a public account. Instagram allows users to determine the privacy settings, including whether the account is public or private. Instagram’s terms of use “grant[] to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content that you post on or through [Instagram], subject to [Instagram’s] Privacy Policy.”
Mashable located Sinclair’s photograph and contacted Sinclair to license the photograph for use in an article on Mashable’s website. Sinclair declined the offer. Mashable proceeded to publish the photograph in an article on its website about female photographers.
Mashable incorporated the photograph on its website using a technical process called “embedding.” The “embed code” is placed in the website code. The code directs a user’s Internet browser to retrieve the embedded content from the server on which it was uploaded, in this case Instagram’s server. The Court found, “[a]s a result of this process, the user sees the embedded content on the website, even though the content is actually hosted on a third-party’s server, rather than on the server that hosts the website.”
Pursuant to Instagram policies, Instagram users can use an application user interface (API), to enable users to access and share content posted by other users in order to embed content on their websites.
The Court held Sinclair granted Instagram the right to sublicense the photograph, and Instagram “validly exercised that right by granting Mashable a sublicense to display the Photograph.” Because the Court found Mashable had a valid sublicense to use the photograph in the embedded code, the Court dismissed the suit.