Instagram Change to Prevent Third-Party Embeds

Screenshot of NANPA's Instagram page which will be making changes due to new controls from Instagram.
NANPA makes use of new controls from Instagram on its account, @NANPApix.

By Frank Gallagher, NANPA Blog Coordinator

You may recall that, back in the spring of 2020, a furor arose over a court decision that essentially said online publishers could embed a photographer’s Instagram post in their online story without obtaining permission or paying for the use. At that time, Instagram’s Terms of Use (ToU) allowed it. Recently, under pressure from photographers, creative professionals, artists, and organizations like NANPA—together with other members of the Copyright Alliance and the Coalition of Visual Artists—Instagram changed its ToU to state that it does not automatically give users a license to embed third-party content.

Previously, court decisions in copyright cases involving Instagram posts were inconsistent, and the only way a photographer could expressly choose to prevent embeds was to make an account private, which defeats the whole purpose of a professional photographer’s Instagram account. Under continuing pressure from creatives, NANPA, and others, Instagram has given photographers new control over their accounts. This is big!

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The Fine Print of Photo Contest Rules

A photo of a colorful dawn sky in the distance. In the foreground is a placid river with a few trees on the opposite bank. Sunrise over the Pocomoke River on Maryland's Eastern Shore. © Frank Gallagher
Sunrise over the Pocomoke River on Maryland’s Eastern Shore. © Frank Gallagher

By Frank Gallagher, NANPA Blog Coordinator

It must be photo contest season. Hardly a day goes by without me seeing at least one notification about an upcoming photography competition. Some have substantial prizes, others offer recognition and exposure. Are they worth it? And what are you getting yourself into? The answers are in the fine print. You do read all the contest rules, don’t you?

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New Copyright Grab … by a Museum

MoMA Photo Club

By Frank Gallagher, NANPA Blog Coordinator

We’ve written many times about copyright issues that NANPA’s Advocacy Committee, chaired by Jane Halperin and assisted by Sean Fitzgerald, is following and the actions NANPA has taken to protect the intellectual property rights of photographers. Yet another troubling example has surfaced of an initiative that tramples on photographers rights and, this time, from a surprising source: the Museum of Modern Art in New York, also known as MoMA.

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Spring Flowers

Photo of the Estes Valley outside of Rocky Mountain National Park after a spring snowstorm. ©  Dawn Wilson
A view of Estes Valley outside of Rocky Mountain National Park after a spring snowstorm. © Dawn Wilson

By Dawn Wilson, NANPA President

Welcome to the month of spring flowers!

Well, for most people it should be. As I type this blog post, it is snowing again here in Colorado. The snow is a welcome weather occurrence as we desperately need the moisture, but it does do a number on those flowers people plant before the recommended planting date of Mother’s Day in Colorado. Much of Colorado, like the West, is still under severe drought conditions, bringing with it the fear of yet another difficult wildfire season. Fingers crossed that is not the case.

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Warning: Photo Rights Grab by New Jersey Division of Fish and Wildlife

"Gone Fishin'," Great Blue Heron, Blackwater National Wildlife Refuge, Maryland © Frank Gallagher
“Gone Fishin’,” Great Blue Heron, Blackwater National Wildlife Refuge, Maryland © Frank Gallagher

By Sean Fitzgerald, Co-Chair NANPA Advocacy Committee

It recently came to NANPA’s attention that the New Jersey Division of Fish and Wildlife (NJDFW) is conducting a “Photo Campaign” soliciting free photos for their photo library.

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Big Changes for Commercial Film Permits

Shadows of photographers and badlands, Twenty Mule Team Canyon, Death Valley National Park, California. © Sean Fitzgerald
Shadows of photographers and badlands, Twenty Mule Team Canyon, Death Valley National Park, California. © Sean Fitzgerald

By Sean Fitzgerald, Co-Chair of NANPA Advocacy Committee

If you mention the topic of commercial film permits to most professional photographers, the response may range from an irritated growl to a wall of invective that would make a sailor blush. And for good reason, too. The statutes and regulations governing when a photographer needs a commercial permit are confusing at best and vary depending on factors such as whether or not the activity involves stills or video, is considered commercial filming, uses props, sets or models, and more. They are sometimes even prone to inconsistent and arbitrary application and even abuse when applied by park rangers and administrators in the real world

For those reasons, NANPA has long advocated for reform and simplification of the commercial film and still photography permit laws and regulations.

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Happy New (Fiscal) Year and Auld Lang Syne

Photo of Susan Day.
NANPA keeps Susan Day on the go. Photo credit: Susan Day.

By Susan Day, NANPA Executive Director

It’s hard to believe that this fiscal year over! Today we welcome Dawn Wilson as NANPA’s next president as well as new board members Beth Huning, Trent Sizemore, and Kika Tuff. Lisa Langell will stay on for a second term and be a great mentor to the incoming members. I’m looking forward to working with and helping everyone achieve NANPA’s goals and dreams.

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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,

Wow!

Photo of members of NANPA's board, St. Louis, 2019.
August 17, 2019. St. Louis, Hampton Inn. NANPA board meeting.

By Tom Haxby, NANPA President

Wow! It was quite the shock to me a little over a year ago when I was approached about being nominated to be the next president of NANPA. Skip forward almost one year after being elected as president and the time has just flown by. The best part about it has been the opportunity to become more involved with NANPA and getting to know many of the people who make NANPA a special community of and for nature photography. So, before I pass the gavel to our incoming president, Dawn Wilson, I want to thank all who have helped NANPA in the last year and continue to do so.  This may feel like a going away note, but really I will be on the board for another year, and who knows after that.

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Can Websites Embed Your Instagram Posts Without Your Express Permission?

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

By Sean Fitzgerald

Can an online publisher simply embed a photographer’s Instagram post in an online story without paying that photographer or obtaining express permission to do so? Unfortunately, a recent New York district court decision in Sinclair v. Ziff Davis suggests the answer is yes, as long as they do so consistent with Instagram’s various service agreements. While some online publishers have been embedding Instagram posts in their stories for a while, Sinclair is the first court decision that gives legal cover to the practice, leading some photographers to reassess how they use Instagram, and indeed all social media, going forward.

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