Posting on Instagram May Prevent Third-Party Copyright Claim, But Probably Not

I recently wrote about a copyright case from the federal court in the Southern District of New York, found here, brought by a professional photographer who uploaded an image on her public Instagram page. After the photographer rejected Mashable’s (a news site) request to license the photo, Mashable directly embedded the picture in its article pursuant to Instagram’s API. 

The Court dismissed the photographer’s copyright claims, ruling that when an individual uploads a picture to his or her public Instagram page, he or she grants Instagram the right to grant sublicenses of the picture. 

The Court has now revised its opinion and allowed the lawsuit to proceed, ruling that Instagram’s terms of service are insufficiently clear to warrant dismissal.  This decision comes on the heels of a similar decision, found here, that found Instagram’s terms of service subject to various inferences: “Although Instagram’s various terms and policies clearly foresee the possibility of entities such as Defendant using web embeds to share other users’ content, [] none of them expressly grants a sublicense to those who embed publicly posted content. Nor can the Court find, on the pleadings, evidence of a possible implied sublicense.”

Adding to this is Instagram’s own statement, reported to and by ARS Technica, found here, that Instagram does not grant sublicenses for embedded links. While the defendants have other defenses, including fair use and the server defense (the subject of another post), it looks like the sublicense defense has fallen by the wayside.