social media terms of use

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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