Judge rules in favor of Mashable on embedded Instagram photo copyright case
law.com
law.com
In Sinclair v. Zi Davis and Mashable, a professional photographer sued Mashable for embedding a publicly visible photo through Instagram's API (they'd previously offered to license the photo for $50, which the photographer rejected).
Instagram's Terms of Use state that users "grant 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." By using Instagram's embed option, Mashable became a sub-licensee, allowing them to post the photo without paying a royalty or needing additional permission.
Therefore, Judge Kimba Wood in the Southern District of New York decided that "...by posting the Photograph to her public Instagram account, Plaintiff made her choice. This Court cannot release her from the agreement she made."
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From the article (behind a paywall):
"The court's decision noted that Mashable did not make a copy of the protected photograph and reproduce it in the published article. Rather, Mashable "embedded" the photograph which appeared in the article. Embedding is a technical procedure whereby a website can use code to direct a user's computer to fetch an image from a third-party server. Instagram utilizes computer code called an API (application program interface), which allows any Instagram user to access and share any content posted by other Instagram users provided those accounts are set in the "public" mode. The end user's Internet browser is instructed by the API to locate the image and display or embed it as part of the website's content. This process occurs so quickly that the user sees the image as direct, even though the photograph actually resides on a third-party server. Instagram's API permits any of its users to embed Instagram posts created and owned by others into their own Instagram accounts or on their websites."