Posting on Instagram Prevents Third-Party Copyright Claim

Update: This decision has been revised by the Court. See here for a discussion of the new ruling.

A recent case from the federal court in the Southern District of New York, found here, illustrates the dilemma faced by creatives who seek to display their work on popular social media sites.  In this case, a professional photographer uploaded an image on her public Instagram page.  Mashable, a news site, wanted to use the picture in an article that it was running and approached the photographer for permission.  Mashable offered the photographer $50 for licensing rights.  Perhaps insulted at the low offer, the photographer declined.  Undeterred, Mashable went directly to Instagram and, using its application programming interface (API), embedded the picture in its article.  The photographer sued for copyright violations.

The court, in dismissing the claims, noted that when an individual uploads a picture to his or her public Instagram page, he or she grants Instagram a license to display it and, importantly, the right for Instagram to grant sublicenses of the picture.  By operation of Instagram’s terms and conditions, Instagram granted Mashable a valid sublicense to embed the photo in its article through Instagram’s API and, thus, Mashable did not violate the photographer’s rights.

Social media sites like Instagram provide photographers and creatives vast publicity and marketing that otherwise would not be available.  However, with those benefits comes significant restrictions on how those creatives can ultimately control, and profit from, their work.