Instagram Terms of Use Allows Mashable to Avoid Copyright Infringement Claim for Embedded Content

Can embedded social media content infringe copyright? The answer may vary not only by jurisdiction, but also with the contractual terms that govern use of the embedded content. 

“Embedding” refers to displaying web content indirectly by linking to another website where the content is hosted. While several courts have addressed the copyright implications of this relatively common practice, it remains unclear in the Second Circuit whether displaying embedded content can infringe a copyright owner’s exclusive right to display its protected work.

In 2018, the U.S. District Court for the Southern District of New York addressed this issue in Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585, 587 (S.D.N.Y. 2018). There, the court found that Breitbart’s embedded links to a tweet of a Tom Brady photo infringed Goldman’s copyright in the photo (which Goldman had initially shared through Snapchat). Critically, the Goldman court declined to adopt the Ninth Circuit’s “server test,” which ties infringing “display” of an image to the server that hosts it.

Earlier this week, in Sinclair v. Ziff Davis, LLC, the Southern District of New York again addressed copyright liability for embedded social media content. The court granted Ziff Davis’ (d/b/a Mashable) motion to dismiss plaintiff photographer’s copyright claims over Mashable’s embedded Instagram photo. In doing so, the court relied on Instagram’s Terms of Use, and found that it “need not reach the question, addressed in Goldman but unsettled in this Circuit, of whether embedding an image constitutes ‘display’ that is capable of infringing a copyright in the image.”

Specifically, the court found that, by creating an Instagram account, Sinclair agreed to Instagram’s Terms of Use granting it “a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content that you post on or through [Instagram], subject to [Instagram’s] Privacy Policy.” The Privacy Policy states that uploaded content designated as “public” can be used via Instagram’s API (which allows others to embed linked content). This language led the court to find that Instagram had lawfully sublicensed Sinclair’s photo to Mashable.

Notably, Mashable chose to use the photo after Sinclair declined its offer to license the photo for $50.  Even so, the court found Mashable could “seek a sublicense from Instagram when Mashable failed to obtain a license directly from Plaintiff—just as Mashable would be within its rights to again seek a license from Plaintiff, perhaps at a higher price, if Plaintiff switched her Instagram account to ‘private’ mode.”  The court also rejected Sinclair’s other objections related to Instagram’s Terms of Service.

Despite a different outcome, Goldman acknowledged similar “genuine questions about whether plaintiff Goldman had effectively released his photograph into the public domain when he posted it to his Snapchat account.”  Yet unlike Mashable’s embedded Instagram photo, the photo in Goldman went “viral” before Breitbart embedded it, raising what the court characterized as complex “factual questions as to licensing and authorization.”  By contrast, the apparently straightforward facts facing the Sinclair court allowed it find, at the pleading stage, that Instagram’s Terms of Service conveyed a sublicense to Mashable, warranting dismissal.

The case is Sinclair v. Ziff Davis, LLC et al., 18-CV-790 (KMW) (S.D.N.Y., April 13, 2020).