Update on a Copyright Conundrum

copy of NANPA's Instagram page.
What rights do you give to Instagram and what do you retain?

In an earlier blog post, Can Websites Embed Your Instagram Posts Without Your Express Permission, NANPA’s Sean Fitzgerald wrote about the disturbing copyright decision in a recent court case, Sinclair v. Ziff Davis. The ruling has profound implications for intellectual property rights for photographers and many other creative professionals. A new court decision, McGucken v Newsweek comes to a somewhat different conclusion. Both are complicated cases and conflicting rulings, so it’s worthwhile to revisit the original article.

Sean Fitzgerald fills us in on an important clarification, just announced by Instagram, regarding its Terms of Use, the interpretation of which have been at the heart of both cases.

“In another victory for photographers, Instagram has now come down on the side of visual artists–expressly stating that it DOES NOT grant API users a blanket license to embed public third party content. This decision will undercut the recent decision in Sinclair v. Ziff Davis and give photographers who use Instagram much needed protection from blanket, unauthorized use of their Instagram posts. Instagram explained its determination in a communication with Ars Technica:

” ‘While our terms allow us to grant a sub-license, we do not grant one for our embeds API,’ a Facebook company spokesperson told Ars in a Thursday email. ‘Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law.’

“Instagram’s decision is significant. Before a party embeds someone else’s Instagram post on their website, they now may need to ask the poster for a separate license and failure to do so could subject them to a copyright lawsuit. Users who fail to get such a license might still be able to assert a fair use defense as justification for their use, but they can no longer claim a blanket sublicense to do so.  

“Instagram has also stated that it is exploring the possibility of giving users with public Instagram accounts more control over the embedding of their posts. NANPA joined with other visual art groups in requesting that Instagram account holders should have the ability to control how third parties use their post and we will continue that dialogue.”

We’ll continue to monitor this and keep you informed as new information or court decisions become available,