A three-judge panel with the 9th U.S. Circuit Court of Appeals has ruled in favor of Meta-owned Instagram after a pair of photographers accused the social media giant of copyright infringement, The basic gist of the case was that Instagram violated copyrights by letting outside websites and publications embed images without the explicit consent of content creators.
The case dates back to 2016, when Time embedded an Instagram image of Hillary Clinton taken by photographer Matthew Brauer without asking for permission. In 2020, Buzzfeed did the same thing with a photo taken by Alexis Hunley of a Black Lives Matter protest. The pair of photogs sued Instagram, alleging that the social media company never asked third parties to obtain a license to embed copyrighted photos or videos, opening them up to a charge of secondary infringement.
The suit was originally initiated in California back in 2021, but a judge dismissed it on the grounds that the news outlets in question didn’t store the original image or even display a copy of it. Rather, it was just displaying what was already available via Instagram as an embed. The pair appealed this decision, which has now failed in federal court. The reasoning follows the with judges agreeing that when a photo or video is embedded, no copy is made of the underlying content.
It’s worth noting, however, that the federal panel of judges did say that Hunley and Brauer raised “serious and well-argued” policy concerns regarding copyright holders’ ability to actually control and ultimately profit from their work. Instagram has also addressed the issue in convening years, adding an option in 2021 that allows users to make images unembeddable. This change came after the platform was lobbied by the American Society of Media Photographers (ASMP) and the National Press Photographers Association (NPPA).
This may not be the end of the case, as that the photographers can petition for a rehearing with a panel of 11 randomly-selected judges, though Brauer and Hunley haven’t addressed this course of action.
There’s also the underlying meaning of this court decision. All by itself, the ruling indicates that third parties, such as media publications, can embed photos and videos at will without ever asking the original content creator for permission. However, related cases have been popping up with differing outcomes, setting the stage for a higher-court showdown at some point.
For instance, a New York judge handed down a back in 2018 when a photographer sued various publications after they embedded tweets with an original image of NFL legend Tom Brady. The judge sided with the photographer here, stating in her decision that “the fact that the image was hosted on a server owned and operated by an unrelated third party does not shield them from this result,” adding “nowhere does the Copyright Act suggest that possession of an image is necessary in order to display it. Indeed, the purpose and language of the Act support the opposite view.”
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