U.S. Judge: Public Instagram Means No Infringement

NEW YORK — In a ruling of particular interest to those who post photos and other creative works on social media platforms, a federal judge yesterday dismissed a copyright infringement case against Mashable, which published an image that was originally posted by a plaintiff on Instagram. The ruling is significant for the creative community, including adult models, because it shows off the strength of terms-of-service agreements that grant sweeping license and re-license rights. Instagram, like Facebook, compels users to sign off on such agreements, which allows photos to be published for third-party use. The plaintiff in the case, Stephanie Sinclair, a professional photographer who is known for works that explore gender and human rights issues, was contacted by Mashable, which wanted to re-use an Instagram-posted image for a story on female photographers. Mashable offered $50, but she declined. Later, Mashable went ahead and used the image anyway, embedding her Instagram post in its news item. Sinclair immediately filed suit, claiming copyright infringement. Yesterday’s opinion, made by U.S. District Judge Kimba M. Wood of New York, said that “pursuant to certain Instagram policies, users can use the API to embed Instagram posts in their websites. That is exactly what happened here: Mashable used the API to embed, in the article, the copy of the photograph that plaintiff previously posted to her public Instagram account.” “Plaintiff claims the agreements between Instagram and plaintiff cannot confer a right to use the photograph upon Mashable because Mashable is not an intended beneficiary of any of the agreements,” Wood said in her ruling. “But Mashable need not be an intended beneficiary of the agreements by which plaintiff authorized Instagram to sublicense the photograph in order to receive a valid sublicense from Instagram. Indeed, plaintiff authorized Instagram to grant a sublicense to, inter alia, anyone who uses Instagram’s API.” San Diego attorney Leslie Burns, who practices in copyright and contract law and has been following the case, said that Kimba’s ruling is broad, profound and could lead to exploitation. “Now, this ruling does not say that it would be OK for a defendant to copy or download a photo it saw on Instagram and use it on its website for any purpose, but the door is open to defendants to try that, even if it might not be a winner,” Burns wrote on her website. “Defendants will lock on this ruling and argue it, even in cases where the facts do not include API use." Burns said that visual artists should consider the costs and benefits of posting works on social media. “I know many of you would argue that you won’t be seen unless you use these platforms,” she said. “[But] I have to tell you that it is simply not true and rather are stories told by the platforms and by clients/users, neither of whom have your best interests in mind. “If you have Instagram or Facebook accounts, I suggest deleting them ASAP and leaving a post directing your followers to your own website, instead,” Burns said. “If they ask why, tell them you value your work and can’t afford to give away your rights.”