Social media networks/courtesy photo

Most people sign up for social media platforms without taking the time or effort to read the platform’s Terms of Use. A recent decision from the Southern District of New York illustrates why this may be a risky proposition for professional photographers, artists or anyone who values their creative intellectual property. The decision in Sinclair v. Ziff Davis and Mashable, 18-CV-790 (KMB) by District Judge Kimba M. Wood considered a claim by a photojournalist, Stephanie Sinclair, arising from an article posted on the news website Mashable, which included one of Sinclair’s photographs without a direct license or payment to her.

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.)

In her review of defendants’ motion to dismiss the complaint, Judge Wood considered the contractual relationship between the parties at the time of the alleged infringement. The court noted that in creating an Instagram account, Sinclair agreed to Instagram’s Terms of Use. The Terms of Use provided, “By accessing or using the Instagram website, the Instagram service, or any applications … made available by Instagram … you agree to by bound by these terms of use.” Sinclair conceded that she was bound these terms.

Instagram’s Terms of Use further provided that a user “grant[s] to Instagram a non-exclusive, fully paid and royalty free, transferable, sub-licensable, worldwide license to the Content that you post on or through [Instagram], subject to [Instagram’s] Privacy Policy.” The court further noted that under Instagram’s Privacy Policy a user can designate an account as either “private” or “public.” These settings can be changed at any time, at the user’s discretion.

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.

In applying Instagram’s Terms of Use to the facts before her, Judge Wood found that Sinclair voluntarily uploaded the photograph to Instagram and designated her postings as “public.” By taking this action, the photographer agreed to Instagram’s Terms of Use, which effectively allowed Mashable, as Instagram’s sub-licensee, to take the necessary steps to embed the photograph on its website. As a result, there was no copyright infringement because Sinclair consented to Instagram’s Terms of Use and related published policies. Mashable merely took advantage of the broad sub-license rights granted by the copyright owner, Sinclair, to Instagram. Having decided the issues based on the agreement between the parties, the court did not have to reach the copyright issues raised by Sinclair’s counsel.

This decision is a warning that a website’s Terms of Use will be viewed by a court as a binding agreement even though the terms may favor the website’s owners. A photographer or creative artist who posts content on a social media website must be fully aware of the consequences of such action. While Instagram has since amended its Terms of Use, the consequences of a “public” posting of a photograph or video on Instagram remain the same.

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).

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