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

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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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.

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.

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!

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.