As a noted professional photographer, Sinclair maintained her own searchable website to showcase her photographs to potential customers. She also had an account on Instagram, one of the world’s most popular platform for photo and video-sharing. Sinclair’s photograph, titled “Child, Bride, Mother/Child Marriage in Guatemala” (the photograph) was the source of the dispute. The photograph was posted by Sinclair on Instagram and her account was set on the “public” mode, meaning any user on Instagram could view Sinclair’s postings.
In March 2016 an employee of Mashable contacted Sinclair in order to license the use of the photograph as part of an article featuring female photographers. The proposed license fee of $50 was rejected by Sinclair. Nevertheless, within the same week Mashable published the proposed article and incorporated the photograph.
In January 2018 a written demand was sent to Mashable requesting that it remove the copy of the photograph and pay Sinclair for the alleged copyright infringement. The defendants refused the demand for compensation. Sinclair filed an action seeking, among other things, damages for the violation of her exclusive copyright to the photograph. Under the Copyright Act, 17 U.S.C. §106, the creator of a work has the exclusive right to reproduce, distribute, publicly display or create derivative works based on a protected copyrighted work. The central issue before Judge Wood was whether Sinclair gave up any of her exclusive rights when posting on Instagram.
The court’s decision noted that Mashable did not make a copy of the protected photograph and reproduce it in the published article. Rather, Mashable “embedded” the photograph which appeared in the article. Embedding is a technical procedure whereby a website can use code to direct a user’s computer to fetch an image from a third-party server. Instagram utilizes computer code called an API (application program interface), which allows any Instagram user to access and share any content posted by other Instagram users provided those accounts are set in the “public” mode. The end user’s Internet browser is instructed by the API to locate the image and display or embed it as a part of the website’s content. This process occurs so quickly that the user sees the image as directed, even though the photograph actually resides on a third-party server. Instagram’s API permits any of its users to embed Instagram posts created and owned by others into their own Instagram accounts or on their websites.
For reasons outlined below, Judge Wood did not have to deal with the unresolved issue as to whether the process of embedding might violate the Copyright Law. A detailed discussion of this issue can be found in Goldman v. Breitbart New Network, LLC, 302 F. Supp. 3d 585 (SDNY 2018) (Forrest, J.)
The Instagram policies have a practical impact because if a user adds content to its account in the “public” mode it is searchable by any other Instagram user. This content may then be utilized by the Instagram user on her or his website through the use of Instagram’s API.
As part of her opinion Judge Wood considered and rejected several arguments raised by Sinclair’s counsel. Notably, it was argued that it was unfair for Instagram to require a professional photographer to post examples of her work in “private” mode. Sinclair argued that Instagram’s dominant role in photo sharing put professional photographers in a difficult quandary, since Instagram is an important platform for photographers to display their work to potential customers. At the same time, any posted photograph is subject to Instagram’s broad sub-licensing terms.
Having considered this compelling argument, Judge Wood concluded, “… by posting the Photograph to her public Instagram account, Plaintiff made her choice. This Court cannot release her from the agreement she made.”
Peter Brown is the principal at Peter Brown & Associates. He is a co-author of “Computer Law: Drafting and Negotiating Forms and Agreements” (Law Journal Press).