Mashable Can Embed Photographer’s Instagram Post On Its Website, Court Rules

The New York Southern District Court has ruled against plaintiff photographer Stephanie Sinclair, dismissing her case against Mashable and its parent company Ziff Davis LLC for copyright infringement after Mashable posted one of Sinclair’s copyrighted photographs on its website. The court found that Mashable used the “photograph pursuant to a valid sublicense from Instagram” and that Sinclair “fails to state a claim for copyright infringement against Ziff Davis.” As a result, the court has dismissed the Second Amended Complaint.

The plaintiff owns a copyright to the image, “Child, Bride, Mother/Child Marriage in Guatemala.” Sinclair has a “publicly-searchable website to showcase her photographs to potential customers,” and she maintains a public Instagram account to showcase her work. She posted a copy of the photograph to her Instagram account, which anyone can view. In March 2016, a Mashable employee emailed Sinclair to license the photograph in question to use in an article about female photographers, which would be published on Mashable’s website. Mashable offered Sinclair $50 to license the photograph, which she declined. Later that month, Mashable published that article, which included a copy of her photograph. Mashable had embedded the photograph from Instagram to include it in the article; so, while the content appears on Mashable’s site the photograph is hosted on Instagram. Instagram uses an application programming interface (API) to allow users to access and share content posted by users with public accounts. According to Instagram’s policies a user can use its API to embed Instagram posts on his or her website. In January 2018, Sinclair asked Mashable to take the photograph down and compensate her for copyright infringement; Mashable refused, and she filed the lawsuit.

The court held that Mashable “used the photograph pursuant to a valid sublicense from Instagram, so its use of the Photograph does not infringe Plaintiff’s copyright.” Sinclair “granted Instagram the right to sublicense the Photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph.” The plaintiff gave permission when she created a public Instagram account, therefore, agreeing to Instagram’s Terms of Use, and posted photographs to that account. The Terms of Use state that “by posting content to Instagram, the user ‘grant[s] to Instagram 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.” Additionally, public profiles are searchable on the platform, as is the content posted on a public account, this content is “subject to use by others via Instagram’s API…The API enables its users to embed publicly-posted content in their websites.”

The court also found Sinclair’s arguments unpersuasive. For example, the court disagreed with her argument that “Mashable’s failure to obtain a license to use the Photograph directly from Plaintiff means that Mashable should not be able to obtain a sublicense from Instagram to use the Photograph” because the plaintiff’s right to grant a license and Instagram’s right to grant a sub-license are independent of each other.

Sinclair also claimed that “the Court cannot take judicial notice of the meaning of Instagram’s agreements and policies because they are complex and subject to different interpretations.” The court disagreed, stating that it “takes judicial notice of the existence of Instagram’s agreements and policies…[but] the Court does not purport to take judicial notice of their meaning.” The court also rejected arguments that Mashable was not the intended beneficiary of the agreement, and that the agreements were too complex to be enforceable.