New York Court Rules That by Posting on Instagram, This Photographer Gave up Her Exclusive Licensing Rights

There’s been much confusion and many legal dramas in recent years surrounding the use of images in online articles, particularly the legality of a picture embedded from social media. Now, a New York federal court has sided with Mashable after they faced legal action from a photographer who was unhappy they embedded her Instagram post into their article.

Stephanie Sinclair is a photographer whose work on gender and human rights has appeared in the likes of The New York Times, Time magazine, and National Geographic. After posting one of her images of a mother and child in Guatemala to her Instagram feed, she was contacted by news outlet Mashable, which wanted to use the image as part of a piece on female photographers. They offered $50 for the usage, which Sinclair declined, before moving forward by simply embedding her Instagram post into the piece instead as a get-around. Sinclair saw this as copyright infringement and thus began a tricky legal battle with a lot of gray areas.

Much of the debate centers around the “server test.” As The Hollywood Reporter puts it:

“[The Server Test] where liability for direct infringement depends on where the infringing images are stored. Two years ago, in a case that involved an embedded image of NFL quarterback Tom Brady, a different New York federal judge rejected the server test and ruled that news websites could be liable for using embedded images.”

In the case of Sinclair versus Mashable, U.S. District Court Judge Kimba Wood has ruled that the photographer “granted Instagram the right to sublicense the Photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph.” Judge Wood doubles down on the ruling by stating Sinclair agreed to this sort of thing happening when she agreed to Instagram’s T&Cs – that being, "a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content."

In this ruling, Wood has torn down the notion that Mashable didn’t have a license to use the image, as her conclusion essentially states that Mashable wasn’t the intended beneficiary of Instagram's terms of use.

Court documents read:

Sinclair "argues that it is unfair for Instagram to force a professional photographer like [her] 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. This Court cannot release her from the agreement she made."

Is it right that artists forfeit the chance to license their images when they upload them to social media?

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40 Comments

Robert K Baggs's picture

Although I think it's an underhand move by Mashable after they were explicitly declined permission to post the image for $50, if you upload your work to a platform than has embedding enabled, you can't police where it's embedded. That said, Instagram ought to give an opt out option for embedding a user's images.

Alex Kane's picture

While I agree the opt out of sharing might be a nice feature, I don’t think it was particularly underhanded by Mashable. If they licensed the image they would have gotten to use a much higher quality image free from IG’s embed styling. Since they couldn’t, they had to use the much lower quality embed that is practically an ad for Instagram.

davidlovephotog's picture

It's the internet not a magazine. Websites don't care as much about quality as click bait pop ups and sidebar ads. Youtube has a no embed option, instagram should as well. Funny how the site makes money off our content but does nothing to protect our content. Twice a week I am reporting DMCA to them and I either get someone that says "The post you reported were removed" or I get "You need to send us proof why each post is yours..." Which I reply, "Ask them to prove it's their photo then."

Andy Filip's picture

Robert that is actually a nice feature Instagram or any other social site should have.

Lael Williams's picture

Being a professional photographer she new Instagrams Policy. It is fair game. Stop posting to Social media outlets and should have no problems.

David Cannon's picture

So if I choose to post my image there, now US Copyright Law is null and void? Interesting interpretation of the law, your honor.

Kirk Darling's picture

No, the US Copyright Law still applies. The problem lies in not understanding the extent of the licensing agreement made by copyright holders with Instagram. The agreement licenses Instagram to use the image, and it also allows Instagram to offer sub-licenses to other entities.

Reading the agreement--it's all there in black and white--the court's decision was clear-cut. As the judge said, "this Court cannot release her from the agreement she made." It sucks, but it's clear.

My question is what happens when a client posts an image instead of the copyright holder. The client has no legal right to have made that agreement. The photographer would likely decline to go after the client (and could have given the client a license to post the image to their own account), but it seems to me that the photographer could still then go after any unauthorized user of the image.

Kirk Darling's picture

BTW, here is an interpretation of the case by an extremely experienced NYC photo-IP attorney, Ed Greenberg, and an extremely experienced NYC commercial photographer Jack Reznicki.

http://thecopyrightzone.com/?p=2020

IGOR BRALGIN's picture

If someone had choosen to post anything in Instagram, this person agreed with the following:

"when you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our Service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings)."

Deleted Account's picture

Yep. Recently read that myself. If you read the fine print on any such sites you may well find similar licensing of your images to them.

Alex Kane's picture

"Is it right that artists forfeit the chance to license their images when they upload them to social media?"

That's not what this ruling says. Mashable was cleared to embed the Instagram post using Instagram's API, along with all the shortcomings. This doesn't allow them to: obtain a high resolution copy of the image, use it in any way without Instagram's crediting and linking to the original post, use it if the post is removed, print it, sell it, upload it somewhere else, etc.

Using Instagram does NOT forfeit your chance to license an image unless your potential buyer only wants a tiny embedded overly-compressed IG panel.

As far as the headline, if you were planning on EXCLUSIVELY licensing a photo to somebody, chances are you wouldn't be allowed to post it on Instagram or anywhere else. That's what exclusive means. This photographer wouldn't have exclusively licensed the photo to Mashable in the first place, and Instagram can't do that either. If things change and you decide you want to exclusively license a photo you already posted to Instagram, just pull the photo (which again you would probably need to do anyway) and any sites embedding it won't have access anymore. Or offer exclusive usage rights to a print-resolution picture. Or offer exclusive commercial rights to selling your full-quality photo. Or sublicense your photo back for self-promotion on social media. Or offer non-exclusive rights so that you can keep using your own picture.

This headline and article feel like a click-bait oversimplification of the ruling, which is only 7 pages long if anybody wants to read it. In simple terms it just says if you publicly post something to IG it can be viewed publicly through IG's API, whether on their app, their website, or through their sharing function.

Ryan Ringstad's picture

could she have just deleted the image off her IG and broken the link?

Alex Kane's picture

Yes. The lawsuit was to determine whether or not you can post to a public IG profile but disallow somebody from embedding the IG post without paying. The judge ruled that if you have a public post on IG (which requires agreeing to IG’s licensing terms, including allowing embeds on other sites) you have to abide by their licensing terms (that you already agreed to). The ruling specifically discusses removing the image from public display on IG if you don’t want it to be shared anywhere else, which the original lawsuit tried to argue was unfair since IG is so popular.

Alex Kane's picture

This is not unique to IG. In case anybody is wondering, here are Fstoppers terms: “ by submitting content to us, you agree that we have a perpetual, non-exclusive, worldwide, royalty-free, irrevocable, fully and freely assignable and sub-licensable license to use the content for the Uses -- including, but not limited to, the rights to use, display, publish, translate, reproduce, distribute, modify, prepare derivative works based upon, and perform publicly your content (or any part thereof) online and offline in any form, media or technology now known or hereafter devised for purposes of the Uses.”

In fact, Fstoppers specifically says their license is “irrevocable” while IG has this line in their terms: “You can end this license anytime by deleting your content or account.”

Guy J. Sagi's picture

I hope you're kidding, but surmise you are not. Does that include everything, like posted portfolios and groups or just article/contest entries?

dean wilson's picture

Read the Terms and Conditions yourself. There is a link at the bottom of every page catted: TERMS.

Francisco B's picture

Ruh roh, fstoppers opened pandoras box with this licensing article haha.

Charles J's picture

Perpetual. Irrevocable.

Does this mean Fstoppers retains rights of usage of a photographer's images even if they are deleted from the site? A member can remove a photo from their portfolio but it doesn't delete the file from Fstoppers' server.

Jeff McCollough's picture

Yes but that does not mean that they can take people's images and start selling them. It's just legal jargon that lets them use the photos around on the website.

Simon Patterson's picture

That's true...until some judge rules that actually it means they can do anything they like with them.

Francisco B's picture

This is the dichotomy of a photographer that wants to share images on a huge public platform and also wants to get paid for those images in one form or another. If you don't have a revenue stream from posting online and you have a problem with people using your images without permission, you shouldn't post your images on social media.

Don Payne's picture

This idea by anybody that posts images on any social media platform automatically loses any rights to their creation is absolutely preposterous. If a photographer or artist hangs their image in a gallery, does that mean now that the gallery now has all rights to that image because the image is displayed on their property? The Terms and Conditions that the social media sites have should be thrown out by every judge because they are in direct conflict with the artist and photographer earning a living. IMHO. I wish everyone a great day.

Alex Kane's picture

You aren’t really losing any rights though, you’re just sharing rights with the platform so that they have the ability to display it. If you didn’t license it to them they wouldn’t be allowed to show it and that’s no different than just not using the site.

Now, certainly if you license something to one party (in any way) you can’t ALSO exclusively license it to another party for the exact same use — because exclusively means ONLY them — but this doesn’t stop you from non-exclusive licensing, which is far and away more common. Or exclusively licensing with exceptions for self-promotion / social media. Anybody planning on exclusively licensing an image is selling away their own ability to use it. And if you really want to do that you can just pull it off of IG which revokes IG’s license.

Kirk Darling's picture

In the US, they would need a license to display your work. Profit is immaterial to a copyright infringement. Uploading an unlicensed copy of a work to the internet on a free website still deprives the copyright owner of the fruit of their labor.

Steven Power's picture

Your comparison to a gallery is terrible. The equivalent has nothing to do with the gallery itself but it is similar to me being in the gallery myself...taking a photo of something on my phone in relation to a topic I am talking about and saying hey if you want to check out this photo here...go to this gallery down the street. They are essentially giving the artist and instagram free marketing by creating a LINK to her work.

Kirk Darling's picture

"The Terms and Conditions that the social media sites have should be thrown out by every judge because they are in direct conflict with the artist and photographer earning a living."

To make that assertion in court, one would have to demonstrate that artists cannot make a living without access to free social media.

But that isn't true.

dean wilson's picture

FStoppers terms can be found on a link of all their pages:

https://fstoppers.com/terms

Guy J. Sagi's picture

First line lulls you to sleep in the Fstoppers's terms of use, then overrules it two sentences later. "You retain all ownership and copyrights in the content that you submit to us. WE WILL NOT SELL YOUR CONTENT unless you have entered into a separate contract with us allowing us to do so; but by submitting content to us, you grant Fstoppers the right to post it on the Site, use it as part of the Services, use it for our internal purposes, and use it to promote FStoppers (the “Uses”). More specifically, by submitting content to us, you agree that we have a perpetual, non-exclusive, worldwide, royalty-free, irrevocable, fully and freely assignable and sub-licensable license to use the content for the Uses -- including, but not limited to, the rights to use, display, publish, translate, reproduce, distribute, modify, prepare derivative works based upon, and perform publicly your content (or any part thereof) online and offline in any form, media or technology now known or hereafter devised for purposes of the Uses. You further agree that Fstoppers and its licensees have the right to use your name and likeness in connection with Fstoppers’ publication, display, modification, distribution or other use of such content. Fstoppers is free to use any ideas, techniques, inventions, concepts, know-how, or other information that you provide to Fstoppers (whether directly or through its third party service providers) for purposes of the Uses without compensation or remuneration."

Guy J. Sagi's picture

And check out the rights to any "invention." My photography isn't up to everything else being posted, but I do have an electronics background that (in my current boredom) allowed me to create and successfully test a solar powered/AC/cigarette lighter recharging system for four different types of batteries. Fits in a small case and portable for trips. I was going to send a an article/version to the Fstoppers team. That won't happen now. Thank you for pointing me to the link Dean.

dean wilson's picture

👍

Dave F's picture

While I’m not saying their license agreement doesn’t stipulate what I’m about to say (I’m honestly not sure), I feel like there’s a small gap in the decision here. Instagram’s terms DO give them the right to sub-license an image, but where was that actually done in this case? Wouldn’t that require Mashable to contact Instagram about licensing the image? And if that occurred, where’s the license agreement and why isn’t it mentioned in the ruling? Basically, it seems like the judge is saying that because Instagram has the RIGHT to sub-license an image, that’s automatically what happened here. But I don’t see where that was done.

I’m assuming somebody will say it’s probably in the terms of the API and all that, but before you say so, please point to where exactly you see it. Because based on what was written, Instagram didn’t actually sub-license the image to Mashable, which would expose a flaw in the ruling.

Mutley Dastardly's picture

I'm staying away from everything that's owned by Facebook - including Instagram.

I'm not a pro-photographer - but i do understand Instagram is not the platform pro's should use to promote their stuff if they want to retain their rights. Facebook is in there to make money, they are on the stock market, and need to maximize shareholder returns.

remember this: Zuckerbergs own words at the end of every internal Facebook meeting: "Domination"

You know that someone pays - with privacy or with loosing owners-rights. I'm not so unhappy about what the judge decided. It's a consequence of the License-terms - and there's not much one can change. You don't like it - you don't use it. I don't like it - i just keep 'm out (by dns-filtering).

Jeff McCollough's picture

I think people here need to either learn to read terms or talk to their lawyers as the terms on these sites DO NOT allow sites to start selling their images but rather is just legal jargon that keeps them safe and like a few have mentioned, gives them the opportunity to display your content on their sites. If they started selling your images(or licensing them) to third parties many people would leave those sites as that is highly unethical no matter what you think the terms to mean.

That being the case, I don't think embedding is the same thing as getting a license to use your content. These sites have embedding features which allow the content to be shared for this purpose. Pretty much all news related sites embed IG images in their articles. The same goes for Youtube videos.

Anthony Collins's picture

Watermark.

Jeff McCollough's picture

But embedding leaves your username and link to that image on your profile visible.

Daniel Lee's picture

Another reason I’m glad I stopped using IG!

Chris Parker's picture

She got some bad advice to pursue this lawsuit. And I agree with others here that it would be nice if IG gave users a "do not allow embeds" option for their photos.