We recently wrote about a case where a Judge in the US District Court for the Southern District of New York found that the website Mashable had a license to use a photo accessible from its site that was actually an embedded photo coming from the servers of Instagram.  In that decision, the Court found that, under Instagram’s Terms of Use, the photographer, by posting photos on Instagram, gave it the right to sublicense the photo to others, which included Mashable who embedded it using an API from Instagram.  This week, the Court issued an Order reconsidering its decision – based on it being pointed out that, for the claim of a sublicense to be sustained, it had to be clear that a license was in fact being issued.  The Court reviewed Instagram’s Platform Policy which made general statement about it helping “publishers discover content, get digital rights to media, and share media using web embeds.”  The Court concluded that, without further evidence, it was unclear that this language alone granted a sublicense to Mashable, and therefore reconsidered its decision to dismiss the photographer’s infringement claim.

This case will go on to look at whether Instagram in fact intended to give Mashable a sublicense to use the photo through the use of the API.  But it does suggest that sites that use embedded media from a social media platform on the assumption that the social media site, by providing other sites the ability to embed their content are in fact sublicensing that content, should proceed with caution.  Those companies looking to post embedded content on their sites should carefully review the terms of use of the social media site to see if a sublicense is in fact being conveyed.  In our last article on the case, we noted that this decision was contrary to another decision in another case (see our article here on that other case) that found a site owner could be liable for embedded content that was accessible from its site.  We noted that there were factual differences in the two cases.  This reconsideration requires even more caution in the use of embedded content from social media sites, particularly in light of the conflicting precedent.
Continue Reading Court Reconsiders Decision About Website Getting License to Embedded Photo from Instagram Terms of Use

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.
Continue Reading Court Decision Dismissing Photographer’s Lawsuit Shows Breadth of Rights Granted to Social Media and Denies Infringement Claim for Instagram Embedded Photo

Last week, a US District Court Judge in the influential Southern District of New York issued an opinion finding that the fact that a picture of New England Patriot quarterback Tom Brady that was displayed on the websites of a number of media defendants was potentially infringing – even though the photo was not copied by the website owners and hosted on their servers. Instead, the photo was “embedded” on the websites and actually came from Twitter where it was hosted on servers maintained by that company. The Judge determined that because the photo automatically showed up on the defendants’ websites when those sites were visited by members of the public and appeared to visitors to be an integrated part of their websites, the mere fact that the photo was not hosted on the servers of the defendants, but instead on the server of Twitter, was not enough to provide a defense to the claim that the defendants had displayed the content without permission of the copyright holder. The right to “display” a copyrighted work is an exclusive right given to the copyright holder under Section 106 of the Copyright Act, meaning that the copyrighted work cannot be displayed without the permission of the copyright holder. As we wrote here, here and here, there have been many cases where photographers have sued broadcasters and other media companies for posting photos on their websites or even on their social media feeds without permission.

It had been widely accepted for the last decade that website owners were safe from copyright liability if they merely embedded content that was served from another site (e.g. social media sites like Twitter or YouTube) as contrasted to actually hosting the content on the website owner’s own server. This feeling of security stemmed from a case last decade where the 9th Circuit Court of Appeals made the distinction between hosting content and merely linking to content on another site. In that case, the Perfect 10 case, the defendant hosted an image search site with thumbnail images of pictures (the thumbnails hosted on the site of the defendant), and when a visitor to the site clicked on the thumbnails, the image was expanded by launching the image on the hosting site. In that case, because the large photos that were displayed when the user clicked on the thumbnails were hosted on the plaintiff’s site, the defendant was not found to be infringing for displaying those larger photos. The Judge in last week’s case found some striking differences in the use of an embedded Twitter photo case that, she said, made clear that there should be no clear safe harbor from liability simply because the image was hosted on a site not owned by the defendants in this case.
Continue Reading Court Finds That Embedded Twitter Photo on Website May Subject Website Owner to Copyright Liability – Be Careful What You Post