When it comes to photographs on the internet, there is definitely more here than meets the eyes. A little over two years ago, there was a big brouhaha over a New York federal district court summary judgment ruling that held embedding a tweet on a web page constitutes copyright infringement. In fact, I wrote about this ruling previously, making the point that there was a lot of exaggeration and hyperbole out there regarding this summary judgment decision, and not to fret about it. Well, it seems that this issue has come up again in the context of an embedded link to a copyrighted photo, but in a different light that merits some attention.
As you may recall, the prior case (Goldman v. Breitbart) referenced above dealt with a photograph taken in East Hampton, New York, in 2016 of Tom Brady (then-quarterback of the New England Patriots), and former NBA All-Star and champion Danny Ainge (general manager of the Boston Celtics). The photographer uploaded the image to his Snapchat Story private group, but once posted, the image apparently went “viral” on social media and eventually ended up on Twitter, being uploaded by some users into some tweets. A number of news websites then embedded tweets containing the photo into stories about the potential recruitment of Kevin Durant by the Celtics posted in their online publications. To make a long story short, the judge disregarded the “server test” from prior copyright jurisprudence (i.e., displaying copyrighted content within a web page that is linked from another’s server is not copyright infringement), finding that a “technical distinction invisible to the user should not be the lynchpin upon which copyright liability lies.”
Now, it seems that such embedded linking of copyrighted photos has come back into the frame, but in a different perspective. Recently, the United States District Court for the Southern District of New York (SDNY) dismissed a copyright claim brought by photographer Stephanie Sinclair against online publication Mashable. The issue? After rebuffing Mashable’s overture to license an image of hers for $50 to use on their website, Mashable did the eminently thinkable — it embedded a post from Sinclair’s public Instagram page containing the photo. Interestingly, the SDNY granted Mashable’s motion to dismiss, holding that the embedding of Sinclair’s Instagram post that contained her copyrighted photograph did not constitute copyright infringement.
So why the different holding here? It all comes down to Instagram’s terms. The judge correctly pointed out that Sinclair decided to post the image in question on her public Instagram page. In so doing, Sinclair assented to the Instagram Terms of Service (ToS) when she uploaded the photo to the platform, requiring her to provide:
a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of [Sinclair’s] content (consistent with [her] privacy and application settings). [Sinclair] can end this license anytime by deleting [her] content or account.
To the point, the court held that Sinclair agreed to Instagram’s ToS (and the license grant) when she uploaded the photo, and cannot now claim copyright infringement for Mashable’s embedding of the Instagram post containing her photograph on Mashable’s website. Unfair? Not in the judge’s eyes. Why? Judge Kimba Wood acknowledged the dilemma for photographers between posting on Instagram (arguably THE dominant platform for photograph sharing online) for widespread views versus not otherwise publicly publishing the photograph, but ultimately that is beside the point — Sinclair did not make her choice in a vacuum, and by posting on Instagram she chose to abide by the ToS that permits the sharing of the photograph.
So what does this mean for photographers? It means that specific consideration needs to be paid to how and when they use social media platforms to present their works. Here are some considerations worth weighing:
- Read and Understand the ToS and Settings Before Posting. I know this seems like I am being Master of the Obvious here, but it bears mentioning because most people don’t do it. It is imperative that photographers (or anyone wishing to maintain rights to their copyrighted works on third-party platforms online) actually read and understand the ToS for such social media platform before uploading the work(s). If the copyrighted work means enough to the owner to otherwise seek a license to the content, then the time should be taken to understand the rights asserted by such platform to uploaded content. Moreover, the privacy settings are equally important and cannot be ignored — they may permit certain types of sharing that is designed for closed groups or otherwise circumvent wider pubic views (a circumstance that was important in Goldman v. Breitbart and remains important today).
- Rethink Your Online Content Strategy. Given the current uncertainty in this area of the law, copyright owners should play it safe and rethink how they want to portray their valuable works online. Don’t think I am discounting the dilemma — to the contrary, the online struggle is real. I get it — any decision not to publish certain works on Instagram may result in less visibility for such works. That said, all is not lost — copyright owners should already have a strategy in place for how they share their works online, and now need to refocus such efforts. First, look at other social media platforms for more friendly ToS and use multiple platforms if necessary. Second, rethink what is shared on Instagram and the methodology used (such as presenting other perspectives of a work on Instagram that may help redirect viewers to more critical copyrighted works, such as “blind the scenes” photos that wet the visual appetite for more, perhaps licensed, works).
Don’t get me wrong –- I fully realize that is not an easy task, but the days of effortlessly controlling the use of uploaded copyrighted works are long gone. The posting of copyrighted photos on social media requires more than some simple mouse clicks –- it requires having an understanding of the social media platform ToS and leveraging such platforms consistent with a rational online posting strategy. So don’t keep the lens cap on -– embrace a new perspective on this evolving issue.
Stay safe and healthy, everyone!
Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at firstname.lastname@example.org.
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