A recent ruling by a New York district court has now shed light on an ongoing question circulating in the publishing world for years: Does embedding someone else’s Instagram photo constitute a copyright infringement?
The short answer? Nope.
In 2016, a photographer named Stephanie Sinclair filed to sue Mashable for embedding a photo from her Instagram account without her permission. Among other feeble tacks, Stephanie Sinclair’s attorney argued that Instagram’s usage policy was “complex and subject to different interpretations.”
The court rejected Sinclair’s contention, relating in its decision:
Plaintiff argues that it is unfair for Instagram to force a professional photographer like Plaintiff to choose between “remain[ing] in ‘private mode’ on one of the most popular public photo-sharing platforms in the world,” and granting Instagram a right to sub-license her photographs to users like Mashable. Unquestionably, Instagram’s dominance of photograph- and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that Plaintiff’s dilemma is a real one. But by posting the Photograph to her public Instagram account, Plaintiff made her choice.
In other words, by agreeing to Instagram’s usage policy as a public account, Sinclair gave Instagram permission to sublicense her content to other publishers – and that would include allowing other publishers to embed her content on their own sites.
According to this decision, when a site reproduces images, the key determiner of infringement or lack thereof is embedding. Note that simply reproducing a public users’ Instagram photo online is not permissible under this rule.
Interestingly enough, the court’s approach here is refreshingly more sensible than a previous court decision ruling in a different direction. In 2018, Judge Katherine B. Forest ruled that embedding a Tweet could possibly constitute a copyright infringement, reversing on a decade’s worth of precedent relying on the “server test.”
The decision in Stephanie Sinclair v. Ziff Davis explicitly elucidates the dilemma faced by many budding artists in the digital age: to make one’s account public, or not public? Instagram’s unparalleled pervasiveness makes it seem like a must-have for artists looking to get noticed or build a platform. That sort of audience reach for image-sharing is just not replicated elsewhere. But by having a public account with Instagram, artists must voluntarily agree to cede potential usage revenue from publishers who use their content.
Now that we know it isn’t illegal to embed Instagram photos, here’s a photo to enjoy. (Although we have a sneaking suspicion Da Vinci wouldn’t file a case against us anyways…)