CALL US: 206.533.3854
CALL US  206.533.3854
AEON Law logo full color transparent
By instagram - http://lilliputadventure.com/instagram-icon/, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=77345720

Courts Wrestle with Instagram Embedding

Instagram embeds
Aren’t allowed by website terms;
Lawsuits may ensue

Federal courts have been wrestling with how to deal with the embedding of Instagram images on other websites.
Two recent cases in the Southern District of New York had the same facts: an online publication, without the photographer’s permission, used the Instagram API to display a photo within an article.

In one case (Sinclair v. Mashable), Judge Kimba Wood granted the defendants’ motion to dismiss, on the following basis:

    • By posting on Instagram, the photographer granted Instagram broad, sublicensable rights to use the photo and other content.
    • Instagram licenses to third parties (including publications) the right to embed Instagram content on other websites using Instagram’s API.

(An “API” is an Application Programming Interface, which is a software tool that allows applications to talk to each other.)

In another case (McGuckin v. Newsweek) decided just six weeks later, Judge Katherine Polk Failla reached the opposite result and denied the motion to dismiss.

Judge Faila found that Instagram’s legal terms didn’t expressly grant a sublicense to embedders.

The plaintiff in the Sinclair case brought a motion for reconsideration, and Judge Wood found that in light of the McGuckin case the Sinclair case shouldn’t be dismissed because Instagram’s terms of use were unclear.

Just after Judge Faila’s decision, a spokesperson for Facebook (which owns Instagram) told Ars Technica that its terms of use don’t allow for embedding without the photographer’s permission:

While our terms allow us to grant a sub-license, we do not grant one for our embeds API. Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law.

As Ars Technica explained,

In plain English, before you embed someone’s Instagram post on your website, you may need to ask the poster for a separate license to the images in the post. If you don’t, you could be subject to a copyright lawsuit.

Professional photographers are likely to cheer the decision, since it will strengthen their hand in negotiations with publishers. But it could also significantly change the culture of the Web. Until now, people have generally felt free to embed Instagram posts on their own sites without worrying about copyright concerns. That might be about to change.


Just like the haiku above, we like to keep our posts short and sweet. Hopefully, you found this bite-sized information helpful. If you would like more information, please do not hesitate to contact us here.

Related Articles

AEON Law Founder Adam Philipp Ranked Among Leading IP Lawyers in Chambers USA Guide

AEON Law founder Adam Philipp is included in this year’s Chambers USA guide of the leading IP attorneys in AEON’s home market of Washington. Based ...
Read More

AEON Law and Founder Adam Philipp Ranked Among World’s Top Patent Professionals in IAM Guide

AEON Law and founder Adam Philipp are recognized in this year’s IAM Patent 1000: The World’s Leading Patent Professionals. Adam was recommended for patent prosecution ...
Read More

Understanding the Dawn Donut Rule for Trademarks

In trademark law, the general rule is that, where two parties seek to use the same trademark in the same geographic area, the earlier (“senior”) ...
Read More

Let's work together.

Contact us to set up a meeting with an attorney or team member.

Stay Informed

Sign up to receive Patent Poetry—a monthly roundup of key IP issues in our signature haiku format. Four articles (only 68 syllables); zero hassle.

SECTORS

HIGH
TECHNOLOGY

Artificial Intelligence

Blockchain & Cryptocurrency

Computer Technology & Software

Consumer Electronics

Electrical Devices

MECHANICAL
& PRODUCTS​

Cleantech

Mechanical Devices

Consumer & Retail Products

Hardware & Tools

Toys & Games

LIFE SCIENCES
& CHEMISTRY​

Biotechnology

Chemical Compounds

Digital Health

Healthcare Products

Pharmaceuticals

BRANDING
& CREATIVE​

Books & Publications

Brand Creation

Luxury Products

Photography & Video

Product Design

call us  206.533.3854

SERVICES

PROTECT

DEAL

DEFEND