In an interesting Court decision from the Southern District of New York, a judge dismissed a lawsuit brought by a photographer for the use of her photo without permission by the website Mashable.  Mashable defended against the claim by arguing that it did not need a license directly from the photographer as it had not posted her photo on its website but had instead embedded that photo using an API from Instagram.  An API allowed the photo to display on the user’s computer with content from the Mashable site, even though the photo was actually coming from Instagram.  Thus, Mashable did not itself host the photo – the photo was hosted and served by Instagram pursuant to the rights that the photographer had granted to Instagram by posting a public photo to that site.  As the Instagram Terms of Use give the company a license to make photos posted on its site available through its API, the Court found that the use of the photo by Mashable was permissible as it had a valid sublicense to use that photo from Instagram through use of the API.  As it had a valid sublicense, it did not need a license directly from the photographer.  The photographer had authorized Instagram to sublicense her photos by agreeing to Instagram’s Terms of Use and not restricting the viewing of that photo to private groups.

This Court’s decision is interesting for two reasons.  First, it seems to contradict a decision about which we wrote here that suggested that the use of an embedded photo was not enough to defeat a claim of liability where the embedded photo was posted on a site to appear to the public to be part of that site.  That other decision focused more on how content appeared to the end-user than it did on the issue of a sublicense as does this case.  Even so, it is likely that there will need to be more litigation and some higher court decisions before there is any final resolution of just how safe it is to embed content from a social media site on your website without permission of the creator of that content.

The other interesting aspect of this case is that it highlights the broad grant of rights that any content creator gives to a social media site on which they post their content.  In my presentations on social media legal issues for broadcasters (see, for instance, my presentation here), I highlight that issue.  By posting content to one of these social media sites, the site’s operator generally has the right to repurpose your content for virtually anything that they want – including sublicensing it to other websites which could be those of your competitors.  Any content producer needs to carefully consider where that content will end up and balance the exposure gained through the distribution offered by the social media platform versus the possible dilution of the value of the producer’s own exploitation of that content.

It will be interesting to watch as this case makes its way through the courts – or as subsequent decisions tackling the same issue are litigated.  For now, what it says is proceed with caution, as the Internet rules of the road are still being written.