Stephanie Sinclair V. Mashable: An eyeopener for Instagram artists to take a re-look at their rights

It can without a doubt be stated that social media has become an inseparable part of our lives today. In Contemporary times, social media platforms have become breeding grounds for display of expression either in the form of a photograph or a painting or a literary work, etc. Amongst the prominent platforms today, various artists consider Instagram to be their medium of display of expression catering to vast interests of audience. Today we wouldn’t have known so many local artists if it wasn’t for Instagram or other social media platforms like Facebook, Twitter etc. But as it is rightly said that with every advantage there comes a disadvantage, the same can’t be overlooked even in the case of social media especially after the U.S. District Courts decision in Stephanie Sinclair’s case[1] of Copyright Infringement.  

The Process of signing up on Instagram is quicker than opening a bottle of wine. All you have to provide is an E-mail address/Phone number which will further require you to state a Username and Boom! You have an account ready. Before your account is launched, it requires you to click a button ‘Next” and by doing so, you agree to Instagram’s terms and Policies. Majority of us do not bother to go through such terms and unknowingly relinquish our rights to Instagram. After reading this case, I’d request all of you reading, to go to the ‘Terms of Use’ section of your Instagram Profile and scroll down to ‘Permissions you give to us’ section, just like I did. What do you see? Do you see the sentence which says “We do not claim ownership of your content that you post on or through our service.”? Did you heave a sigh of relief at this statement in light of other Copyright measures provided by Instagram assuming your work is safe from any infringement? Wait! Don’t jump into conclusions, because the real game changer lies in the subsequent words which say “Instead, when you share, post, or upload content that is covered by Intellectual property rights or in connection with our service, you hereby grant to us non-exclusive, royalty-free, transferrable, sublicensable, world-wide license to host, use, distribute, modify, run, copy, publicly perform or display , translate and create derivate works of your content.” To see how this could be problematic, let us look into the Sinclairs case.

A Pulitzer Prize winning Photo Journalist Stephanie Sinclair (Stephanie) known for her commendable work on Gender and Human rights issues owned an exclusive United States Copyright on an image titled “Child, Bride, Mother/Child Marriage in Guatemala” which she also posted on her Instagram to be viewed by her followers. A digital Media Website Mashable which is owned by its Parent Company Ziff Davis approached Stephanie via e-mail to use this photograph of hers on its website in a Listicle based on female photographers and offered to pay her $50 for licensing rights of the photograph. This request was denied by Stephanie. However, Mashable went ahead and posted this picture of hers on its website. Stephanie demanded Mashable to take down the Photograph and pay her compensation. Masahable however stated that there is no copyright infringement in the instant case as the picture was taken through the process of embedding Instagram’s website. Therefore, this suit filed before the United States District Court (Southern District of New York) deals with the issue of ‘whether by signing up with Instagram and agreeing to its terms gives it a right to sublicense copyrighted work to third-party websites without the same leading to an infringement?’

Before we proceed to the Courts observation, it is important we understand certain technical words which were resorted by Mashable to turn the case to its favor. The Process of embedding is used to retrieve the content from the third-party server and display it on the website[2]. When an individual visits a website that includes an “embed code,” the user’s internet browser is directed to retrieve the embedded content from the third-party server and display it on the website[3]. Now since Instagram uses a service called ‘Application Programming Interface’ (API) it further enables users to access and share content posted by other users whose accounts are set to “Public” mode. This entire process turned out to be a blessing in disguise for Mashable, where it used Instagram’s API to embed in its Article the Photograph of Sinclair that she posted on her “Public” account on Instagram.

Though Stephanie advanced various arguments, the Courts approach seemed to favor Mashable. To her first Argument that her right to grant a license directly to Mashable and Instagram’s license to grant a sublicense operate independently, the Court stated that since Stephanie’s account was in a Public mode, Mashable was well within its rights to seek sub-license from Instagram. To her Second Argument on the complexity of Instagram’s Terms and Policies, the Court stated that it does not take judicial notice of the meaning of such Terms and Policies. Furthermore, she contended that Mashable is not an intended Beneficiary to the Agreement between her and Instagram, to which the court stated that the Plaintiff authorized Instagram to grant a sublicense to anyone who uses Instagram’s API.  The court further added that whether Mashable is an intended beneficiary would only matter if Mashable were attempting to enforce one of the agreements between Instagram and Stephanie, which was not the case. One of the interesting points also raised by Stephanie was that it was contradictory for Instagram to simultaneously demand that users respect the intellectual property rights of others when uploading content to Instagram, while also granting those users a right to share other users’ public posts containing copyrighted material. To which the court stated that there is a difference between uploading the content and sharing the content and that in the instant case there has been sharing of content through a sub-license obtained through Instagram.

Summing up all the points the Court did acknowledge “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.” However, the Court cut it out and ruled in favour of Mashable stating “But by posting the Photograph on her public Instagram account, Plaintiff made her choice. This Court cannot release her from the agreement she made.”

This case also demanded a relook into the previous cases which also dealt with the copyright infringement of embedded codes. The case of Perfect10 v. Amazon[4] which gave the “server rule” held that “exhibition on one website by embedding or framing copyrighted content residing on another website is not a copyright-triggering act of public performance or display unless that content has also been copied onto the embedding or framing website’s server.” This server rule which was applied at large in almost all the decisions from 2007 to 2017 saw its downfall with certain subsequent judgments.[5] A notable judgment which showed such deviation is the case of Goldman v. Breitbart News Network LLC.[6]This case which dealt with copyright of a photograph posted on snap chat relied on the language of the US Copyright Act and held that websites which display embedded tweets featuring the photograph violated plaintiff’s exclusive right of public display, despite the fact that photograph was not hosted on websites’ servers thereby rejecting application of Ninth Circuit’s Server Test.

Now we might wonder why Goldman’s case was not considered in Stephanie’s case. To our surprise, the current case disregarded the ratio of the Goldman’s case and stated “Because the Court finds that Instagram granted Mashable a valid license to display the Photograph, 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.”   

Though Sinclair’s case might be considered as a huge win for the entertainment and media industry, it leaves certain pot holes to be carefully looked at by artists while driving their case towards a possible copyright infringement. This case might discourage artists to display their work on Instagram or turn their profile to private mode which would defeat their purpose of displaying their work as well as deprive them of the exclusivity to hold rights over their work. Another point which could be pondered upon is the inconsistency in settling a law with regards to copyright of embedding content. At the moment, irrespective of there being an appeal which might hold otherwise, it is important for all the artists to understand the rights bestowed to Instagram and follow necessary steps towards protecting the same in light of the current case.

It is also important to keep up to date with the change in policy terms of such social media platforms. There could be a possibility that the terms one has signed up for might change eventually thereby leaving no recourse available in case of an infringement. This happened in the case of Agence France Presse v. Daniel Morel,[7] where the court held that on twitter to freely distribute and monetize content posted by its members, it did not allow third parties to take the content unless they had a specific contract to do so with Twitter. However, later, in 2017 twitter changed its policy similar to that of Instagram giving it a right to sub-license the content posted without the permission of the Owner thereby paving way for something similar to happen for Twitter users as it  happened to Sinclair.

[1] Stephanie Sinclair v. Ziff Davis, LLC, and Mashable Inc., case no 1:18-cv-00790-ICMW.

[2] Id.

[3] Id.                                                   

[4] Perfect10 v. Amazon, 508 F. 3d 1146, 1159 (9^th Cir. 2007).

[5] Otto v. Hearst Communication Inc, 345 F. Supp 3d 412; Leaders Institute v. Jackson, No. 3:14-CV-3572-B, 2017 WL 5629514 (N.D. Tex. Nov. 22, 2017)

[6] Goldman v. Breitbart News Network LLC., 302 F. Supp. 3d at 594–95

[7] Agence France Presse v. Daniel Morel, 934 F. Supp.2d 547