It has become very common, in this digital era, for new businesses to come up and use social media sites, especially Instagram, for promotion of their businesses, be it designer stores, salons, cafes, coaching classes, or photography business. Instagram profiles are made for such businesses by their owners so as to attract customers and market their services. In fact, it has become a necessity for some of these businesses to maintain a publicly accessible social media account of themselves, by posting photos and videos, so as to maintain their success.
This being said, let's imagine a scenario wherein your photo/video gets sold by Instagram to a third-party trader. You must think that this amounts to copyright infringement, and you, as the owner of the copyright, would be able to enforce your claim against the third-party for such infringement, right? Well, the answer is not so straightforward and clear- recently, the same issue came to be addressed at the Southern District of New York.
In April 2020, a case was registered in the Southern District of New York, by a photographer, against Ziff Davis, a digital media and advertising company, that owns several online brands and print titles, one of which is the famous Mashable (a media and entertainment platform, that goes by www.mashable.com). The Plaintiff uploaded an image titled "Child, Birth, Mother/Bride Marriage in Gautemala", in which an exclusive U.S. copyright is owned by her, on her public Instagram account. In the year 2016, Mashable had contacted the Plaintiff asking her to license the image to it, so that it could showcase the same on its website, and this request was declined to by the Plaintiff. However, after a few days, it was seen that Mashable had used a copy of the picture in question, in one of its published articles. It did so, very easily, by embedding the content on Instagram to its website. Embedding is a process through which a third party publishes content from Instagram's servers in Instagram's frame on its own website. The Plaintiff, in her complaint, agreed to the fact that Mashable had not copied the photo from Instagram, but had posted an "embed code" on its site, which embedded the image in its article. What happens is, photo- and video-sharing platforms including Instagram, Youtube, Facebook, etc. provide their users with such embed codes, using which, a user may embed any content on these sites onto other sites. However, users have the right to control this by either restricting or completely preventing other users from embedding their content, by designating it as private.
The main governing instrument in this dispute came to be Instagram's "Terms of Use", which is a basic written agreement between the platform and its user, detailing the rights and liberties of the former, and is mostly just ignored by users by mechanically pressing the button "I Agree". By doing this, they license Instagram to make public any photo they share through their profile. Further, these images may also be sub-licensed by Instagram to third-party users. The Defendants of the suit claimed that Instagram's "Platform Policy" states that it provides an API (Application programming Interface) to help broadcasters and publishers discover any content, get digital rights to any media and share them using embeds. The Judge agreed with the defendants, holding that the use of a public Instagram photo by embedding it in an article is well-within the scope of its Terms of Use.
However, in the first week of July, 2020, the same court reconsidered its ruling in the above case (Sinclair v. Ziff Davis), when it so happened that a different judge in the same court adressed the same issue, but ruled in the opposite. The case was of McGucken v. Newsweek, in which the court upheld the photographer's claims to copyright infringement claims based on the same Terms of Use of Instagram, despite the Defendant citing the case of Sinclair.
Hence, upon reconsideration, the District Judge relied on McGucken, and held that there are various interpretations of Instagram's Terms of Use and Platform Policy. It was held that Sinclair, by agreeing to the Terms of Use, authorized Instagram to sub-license her public content to third party sites, however, the court did not find any evidence that Instagram had exercised this right by actually providing Mashable with a licence for the same. A licence must convey explicit consent from the licensor to use a copyrighted work.
Thereafter, Instagram made a public clarification regarding this issue. It said that none of its policies grant a blanket license to API users to embed public content onto third-party sites. It further stated that the platform policies require such third parties to have the necessary rights from concerned right-holders. This includes having a licence to share such content, in case it is required by the law. This declaration by the social media tycoon was considered to be a huge relief to businesses that largely use Instagram for their marketing and promotion by putting their content on the public domain of the app. They are now protected with proper tools so as to help them fight copyright violations.
