In a recent ruling, a three-judge panel with the 9th U.S. Circuit Court of Appeals has ruled in favor of Instagram, the social media platform owned by Meta. The case involved copyright infringement allegations made by two photographers against Instagram. The photographers claimed that Instagram violated copyrights by allowing outside websites and publications to embed images without obtaining the explicit consent of the content creators.
The case originated in 2016 when a photograph of Hillary Clinton taken by photographer Matthew Brauer was embedded by Time magazine without seeking permission. In 2020, Buzzfeed did the same with a photograph taken by Alexis Hunley of a Black Lives Matter protest. The photographers filed a lawsuit against Instagram, arguing that the company failed to require third parties to obtain licenses for embedding copyrighted photos or videos. This, the photographers claimed, made them vulnerable to charges of secondary infringement.
Initially, the suit was dismissed by a judge in California in 2021. The judge ruled that the news outlets in question did not store or display the original image, but rather displayed what was already available via Instagram as an embed. Dissatisfied with this decision, the photographers appealed to the federal court, which has now upheld the previous ruling. The judges reasoned that when a photo or video is embedded, no copy is made of the underlying content.
However, it is important to note that the federal panel of judges acknowledged the “serious and well-argued” policy concerns raised by the photographers regarding copyright holders’ ability to control and profit from their work. In response to these concerns, Instagram introduced an option in 2021 that allows users to make their images unembeddable. This change was made after lobbying efforts by the American Society of Media Photographers (ASMP) and the National Press Photographers Association (NPPA).
Although this ruling appears to indicate that third parties, such as media publications, can freely embed photos and videos without seeking permission from the original content creator, other related cases with differing outcomes have been emerging. This sets the stage for a potential showdown in a higher court in the future.
An example of such a case is the 2018 ruling by a New York judge in a lawsuit filed by a photographer against several publications. The publications had embedded tweets containing an original image of NFL legend Tom Brady. In this case, the judge ruled in favor of the photographer, stating that the fact that the image was hosted on a server owned by an unrelated third party did not shield the publications from liability. The judge argued that possession of an image is not necessary to display it, and the purpose and language of the Copyright Act support this view.
It is worth mentioning that the photographers involved in the Instagram case still have the option to petition for a rehearing with a panel of 11 randomly-selected judges. However, it is unclear whether Brauer and Hunley will pursue this course of action.
In conclusion, the recent ruling in favor of Instagram by the 9th U.S. Circuit Court of Appeals has determined that third parties can embed photos and videos without seeking permission from the content creators. However, this ruling does not necessarily settle the broader issue of copyright infringement in the context of embedding. With conflicting outcomes in related cases, it is likely that the issue will eventually be examined and clarified by a higher court.
