Legal Takes

Do You Give Up Exclusive Licensing Rights When You Post on IG?

April 16, 2020

By Aaron M. Arce Stark

© Shutterstock

Update 2/11/21: Mashable has reached a settlement with photographer Stephanie Sinclair over its unauthorized use of her images via the practice of “embedding” Instagram posts. This settlement comes 6 months after Mashable lost its own bid to end the original lawsuit.

The terms of the agreement were not publicly available. An attorney for Mashable declined to comment. An attorney for Sinclair declined to share any details, but said his client was pleased with the outcome of the case. “She believes that because of this case, third party publishers generally no longer embed copyrighted photos or videos from Instagram without first obtaining permission or a license from the copyright holder,” said James H. Bartolomei.

Update 6/29/20: The U.S. District Court for the Southern District of New York has reopened the case filed by photographer Stephanie Sinclair (initially thrown out) against the publication Mashable, which embedded one of her images through Instagram after she denied the publication’s request to license the photo for an article.

Imagine you’re a photographer who posts a particularly good shot to Instagram, so good in fact that a large media company approaches you and asks to buy a license to the photo for use in a photo series. You say no. Later that day, you see the media company posting your post on its Instagram Stories, as an embedded link. When you said no to a license, the media company simply shared your post rather than copying it. How is that okay? You specifically said no and they used it anyway. You decide to sue the company. 

Unfortunately for one photographer, this hypothetical is real. Stephanie Sinclair is a photographer known for exploring gender and human rights issues around the world and her work has been featured in The New York Times, TIME Magazine, and National Geographic. Some time ago she posted a photo of a mother and child in Guatemala to her Instagram account. The digital media platform Mashable then contacted her and asked for a license to use her photo in a story it was putting together about female photographers; Mashable offered her $50 and she refused. Mashable moved ahead with the story anyway, and rather than directly posting her photograph, it simply embedded Sinclair’s original post in its Instagram Stories. Sinclair sued Mashable’s parent company, Ziff Davis, for copyright infringement [Sinclair v. Ziff Davis, 18-CV-790 (KMW) (SDNY, Apr. 13, 2020)]. 

[Read: How to Protect Your Photos on Social Media]

It seems like an open and shut case. Mashable asked Sinclair for a photo license—thus demonstrating that it thought a license appropriate itself—and Sinclair refused, notably because the price was not in her range, and Mashable used the photo anyway. But the Southern District of New York did not agree, holding on April 13 that Mashable used the photo “pursuant to a valid sublicense from Instagram.” When you sign up for Instagram and post an image, the judge reasoned, you agree to Instagram’s Terms and Conditions, which include granting to Instagram a transferable sublicense on all your content, which applies to the site itself. In other words, by posting content to Instagram, you are effectively giving every other Instagram user a license to repost your content—at least on Instagram. 

“Sinclair granted Instagram the right to sublicense the Photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph,” ruled U.S. District Court Judge Kimba Wood.

This ruling contrasts with a 2018 Southern District of New York ruling in which the court held that embedding a tweet within a webpage can constitute copyright infringement [Goldman v. Breitbart News Media, LLC, et al., 17-cv-3144 (KBF) (SDNY, Feb. 15, 2018)]. The two rulings align with the right perspective: in Goldman, the defendants moved the image from one platform to another, jumping over the garden walls of a platform’s Terms and Conditions, and thus infringed a copyright. But in Sinclair, the defendant kept the image within the Instagram platform and thus within Instagram’s user agreement, including its sublicensing provisions. And indeed, it makes sense that when you post an image on a social media platform, one that has a direct option to share other user’s content, you somewhat expect others to use that share feature. 

[Read: The Paparazzi Sued a Supermodel for Posting a Photo of Herself to Instagram]

Of course, as Sinclair pointed out, Instagram does have an option to make your account private, which prevents other users from embedding your content into their Stories. But also as Sinclair pointed out, a ruling that posting content publicly creates an effectively universal sublicense creates a draconian dichotomy, between having a public account and risking constant theft of your work, or going private and losing potentially thousands of followers. It may be that Instagram will alter its user service agreement or its functionality in such a way that renders this question moot, perhaps Instagram will add a feature that allows users to choose who can or cannot embed or share their content. It’s also worth noting that even as Instagram currently operates, Sinclair likely could have just blocked Mashable’s account, which would have prevented Mashable from being able to post her image. [Pro photographers are already starting to respond on Instagram to the ruling. See Janelle Jones call to action here.]

[Read: I Deleted All My Social Media—Here’s Why My Photos and Business Are Better Off]

This ruling comes from the Southern District of New York, and so at least for now it only applies to the Second Circuit; photographers outside of the New York, Vermont and Connecticut areas may have some breathing room. But the reasoning behind the ruling is not unsound and other circuits may adopt this standard, and so be wary and be aware: Posting content on Instagram gives every other user a license to repost your work, at least on the same platform, even if you’ve otherwise specifically denied them the use of your content. However, always remember that if someone is reposting your content without your permission, you can always just block them. 

Aaron M. Arce Stark is a lawyer for artists and entrepreneurs. Learn more about his law firm, Arce Stark & Haskell LLP, at Stark.Law LLC.

This article is for informational purposes only. Contact a lawyer for legal advice.