Update: January 2022
There have been some new developments since I last reported on this issue. First, in November 2020, another New York court held that the unauthorized embedding of an entire post that included a copyrighted image was excused as fair use. This court made a narrow distinction between the copyrighted photograph contained within the post and the post itself, stating “embedding social media posts that incidentally use copyrighted images in reporting on the posts themselves transforms the original works, supporting a finding of fair use.”
Now, after intensive lobbying by advocates for photographers and other visual artists (including American Society of Media Photographers (ASMP) and the National Press Photographer’s Association (NPPA), Instagram has finally agreed to implement a process which will allow users to disable embeds.
To disable embeds via the iOS or Android app, go Settings’ under your profile, then tap Account > Embeds, where you can find the “Allow people to embed your posts or profile on other websites” option. The same setting can be found under Settings > Privacy and Security in the browser. To stop embeds, disable this selection.
It is important to disable the embed function even if some New York courts ultimately decide that embeds are not allowed absent explicit permission from Instagram account owners. In California, some courts are continuing to hold that embeds are not infringements because technically the embedded images are not stored on the outside website’s server. Numerous other courts have rejected such reasoning, instead finding that embedded tweets featuring copyrighted images and embedded images “framed” by surrounding web content to be infringements. In short, the issue is still in flux. The best way to protect against embedded copying is to disable the embed feature. Those who want to reproduce your Instagram post should reach out to you directly and get your permission to do so.
Update: July 2020
After the controversial court ruling discussed in the original article below, and the immediate outcry from intellectual property owners and organizations, three important things have happened:
(1) Instagram disowned the Sinclair court’s ruling by explicitly stating that Instagram’s policies DO NOT automatically grant to anyone (like Mashable) a license to embed content posted on Instagram. Instead, Instagram says, anyone that wants to embed content from an Instagram post must first obtain explicit permission from Instagram;
(2) Another court in New York, faced with the same issue, ruled that Instagram’s policies were unclear, and thus refused to follow the Sinclair court’s rule, instead saying that whether Instagram’s policies allow anyone to embed Instagram content is an issue of fact to be decided by a jury; and
(3) The judge in the original Sinclair case withdrew her opinion, meaning that Sinclair’s lawsuit against Mashable will be allowed to move forward.
What does this mean?
For now, this is good news for Instagram users. There is no longer a court opinion on the books allowing anyone to legally embed content from Instagram without permission. However, we don’t know yet how the two pending court cases will ultimately end up. And it remains unclear if Instagram will hold for itself the power to grant or deny licenses for embedding the content of its users, or if Instagram will require permission be obtained directly from the Instagram account holder. Under Instagram’s current policies and its recent statement, Instagram is not obliged to seek permission from a user before it grants a sublicense to entities like Mashable to embed that user’s content. Indeed, Instagram could even charge a fee for a sublicense without sharing revenues with the user.
Bottom line, nothing is really solved yet. At a minimum, Instagram’s policies should be changed to clarify that only Instagram’s users should have the authority to grant a license for non-Instagram users to post their content outside of the Instagram platform. Other social media accounts, like Twitter, should also be encouraged to make similar explicit changes to their policies. As this situation illustrates, social media platforms are susceptible to social pressure. I encourage you to write to them directly to advocate for appropriate changes to protect your intellectual property rights online.
April 21, 2020 – Original Post
Any Website May Be Legally Entitled To Embed Your Instagram Images — 5 Things You Can Do About It
Instagram is the most popular site in the world for visual artists and photographers to showcase their work. However, if you are a professional artist or photographer, Instagram is also a dangerous place to market your work. In a lawsuit brought by photographer Stephanie Sinclair against mashable.com, the court has just held that anyone can embed images from a public Instagram account for display on their own website without getting your permission and without paying you a license fee. This is true even if the website is using the image to generate revenues, and even if you would normally require permission and a license fee for such use. The court ruled that Instagram’s user terms allowed mashable.com to sublicense images by using Instagram’s embedding API.
A detailed discussion of the case and its implications for artists and photographers follows the “What to Do Now” section below.
What To Do Now
Now more than ever, professional artists and photographers need to be savvy about protecting their livelihoods by doing as much as they can to control use of their works online. The Sinclair case not only endangers your ability to earn a livelihood from licensing your images; it could impact your ability to provide, and charge appropriate fees for, exclusive licenses of your images. When Instagram and other social media sites have rights to sublicense your images to anyone else, you cannot guarantee to your clients that the same image won’t be sublicensed to a competitor through social media.
In light of this new case, consider doing the following immediately:
1. Watermark your images. If your images on social media have visible watermarks, sites like Mashable will be less likely to embed them. Instead, those who want to use your images should reach out to you for access to a clean image, and then you can charge an appropriate license fee. I understand that many artists do not like the visual disruption of watermarking. However, I believe it is important to make it visibly clear that images posted online are not available for free copying. The ease of online copying, and the proliferation of social media sites with embedding APIs, is re-enforcing an online culture where people feel entitled to copy images without permission or payment. The more we can normalize visual watermarking, the more chance we have of reversing the practice and expectation of unfettered and uncompensated copying.
2. Change your Instagram setting to private. You may have to change your account to personal to do so. Currently, Instagram does not allow business or creator sites to be set as private.
3. Remove licensed images from social media. Use your own site to show work that is not currently available for licensing (and make it clear on your own site that no copying or embedding is permitted). This protects you from inadvertently violating an exclusive license with your client because a social media site allowed someone else to copy or embed the same image.
4. Don’t use social media as your online portfolio. Post only a few images on social media, and direct your viewers to your own site (or another privately controlled site) where you can display all of your work with appropriate restraints against embedding or copying.
5. Tell Instagram to change its rules. Join the efforts lead by ASMP (American Society of Media Photographers), GAG (Graphic Artists Guild), and many other professional organizations. As of this writing, these organizations are preparing a letter to Instagram advocating for changes to allow private settings for all categories of accounts, and allow private settings for individual images within accounts. They’ve also created graphics you can post on your account to protest the current situation. See https://maddreypllc.com/2020/04/16/response-to-instagram-ruling-and-what-you-can-do-today/.
The Legal Decision
The case is called Stephanie Sinclair v. Ziff Davis, LLC and Mashable, Inc., in the Southern District of New York (Case No. 18-CV-790). Stephanie Sinclair is a Pulitzer Prize winning professional photographer. She shows her work online on her own site, as well as on Instagram. Mashable operates several international “content farm” websites which repackage news and entertainment content from other sources, including “clickbait” “listicles,” designed primarily to attract hits for its advertisers. Mashable reached out to Ms. Sinclair and offered to license use of one of her photos for $50. Ms. Sinclair refused. Mashable then went ahead and used Instagram’s embedding API (application programming interface) to embed Ms. Sinclair’s photo in a listicle about female photographers. “Embedding,” also known as inline linking, is a technical process which directs browsers accessing one website (like Mashable) to display on its own site an image that remains physically stored on another site’s server (like Instagram’s).
Instagram’s “Terms of Use,” like all social media sites, say that when you sign up for an Instagram account, you agree to all of its terms and policies. Instagram’s Terms of Use say upfront that when you sign up for an Instagram account, you grant to Instagram a free license to reproduce and distribute your images in any way it wants. Under Instagram’s separate Privacy Policy, if you designate your account as private, your images can only be used inside the Instagram platform. If your account is public, however, Instagram can allow copying and distribution of your images on any other site (in legal terms, such sites are called “third parties”). In another separate “API Platform Policy,” Instagram allows third parties (not just Instagram account holders) to share images posted on all public Instagram accounts by using Instagram’s embedding API.
The New York court held that taken together, these disparate provisions in Instagram’s various terms and policy documents meant that, by signing up for her Instagram account, Sinclair had agreed that Instagram was authorized to sublicense Mashable to embed her images on its own sites. Therefore, Mashable had not violated her copyright, even though Sinclair had already refused to license the image directly to Mashable. The court rejected arguments from Sinclair’s attorneys that Instagram’s “labyrinthine of terms” (totaling 17,000 words in several different documents) made it difficult for the average layperson to understand that such a sublicense was possible. The court also rejected their argument that Instagram’s terms and policies could be interpreted differently, especially because elsewhere Instagram’s terms include a lot of provisions warning users not to violate intellectual property rights.
The court acknowledged that it is unfair for Instagram to force a professional photographer to choose between making her account private (thus defeating the purpose of promoting her work) or granting Instagram the rights to sublicense her works to commercial users like Mashable. “Unquestionably,” the court said, “Instagram’s dominance of photograph- and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that [Sinclair’s] dilemma is a real one. But by posting the Photograph on her public Instagram account, Plaintiff made her choice. This Court cannot release her from the agreement she made.”
Instagram was not a party to this suit and, as of this writing, Instagram has not made any public statements about the court’s decision, and has not offered its own interpretation of its terms and policies.
How Website Terms Can Be Enforceable Contracts
Legally, any agreement that reflects an exchange of something of value between the “parties” (the people or entities making the agreement) will be considered a valid contract. For many contracts, such as the ones you have with your clients, the parties can both participate in negotiating and drafting the terms. For online sites, however, this is not true – a website’s terms of use and policies (I’ll call them all “website terms”) are unilaterally imposed on all users. Nevertheless, courts are consistently holding that such website terms are enforceable as what’s called an “adhesion contract.” Traditionally, adhesion contracts are documents like credit card terms or car loan agreements, which have long been held enforceable even if consumers cannot negotiate any changes, even if consumers have not read or understood the fine print, and even if the exchange of value is lopsided. Courts have analogized website terms to these types of enforceable contracts. Social media website terms are contracts because you are receiving a value — simply the ability to use the site and its services, in exchange for agreeing to the terms.
You do not have to sign anything for the website terms to be a valid contract. You don’t even have to click on an “I agree” button (although many sites will require a click-through, and most lawyers believe that is the best practice). Many website terms recite that you are agreeing to the terms simply by using the site. Courts have upheld this as a way to make the website terms an enforceable adhesion contract.
Social Media Terms Keep Evolving
Many social media sites used to have website terms that said users were transferring all of their rights in posted images to the site. After much publicity and outrage over this, most major sites now have recitals confirming that you retain copyright in your images. For example, as of this writing, Instagram’s terms say “Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the Instagram Services.”
But in the very next sentence, Instagram’s terms say “By displaying or publishing (“posting”) any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly (“private”) will not be distributed outside the Instagram Services.”
Most social media sites have website terms that similarly allow the site, and almost always the site’s advertisers, to reproduce your images, and to monetize them, without sharing any revenues with you. Moreover, essentially all website terms say that they can amend their terms and policies without notifying you, which means you have to keep checking for any changes that might make you decide to take your work off the site. Even then, you can’t retroactively terminate the permission you had already given the site regarding content that used to be on it.
Free Use For Third Parties is Expanding
In 2013, federal courts in New York were asked to interpret Twitter’s terms about re-use. In a case called Agence France Presse v. Daniel Morel, the news service Agence France sought a legal ruling that its re-posting of photographs posted on Twitter by renown photographer Daniel Morel of the Haiti earthquake did not infringe Morel’s copyrights in the photos. Morel had an exclusive license agreement with another news organization, but Agence France argued that by posting his photos on Twitter, Morel had authorized anyone else to use them. The courts rejected that theory, ruling instead that Twitter’s website terms at that time, while allowing Twitter to freely distribute and monetize content posted by its members, did not allow third parties to take the content unless they had a specific contract to do so with Twitter.
Unfortunately, Twitter’s website terms have changed since then. Today, like Instagram, Twitter’s current website terms grant to Twitter a broad license to allow anyone to repost and embed tweets, and Twitter also has an embedding API which allows people to do so. Many other social media sites are the same. This means that the same problem might happen on any social media site.
– Contributed by Linda Joy Kattwinkel