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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.

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