Instagram Embedding: An Issue for Artists

Takeaway: Photographers challenge the “server test” outlined by the Ninth Circuit stating that the test should not be used to protect those who use an embedding tool to aid infringement by third-party websites.

Photography groups, including National Press Photographers Association and Getty Images, filed an amicus brief in support of photographers Alexis Hunley and Matthew Scott Brauer’s recently dismissed class action suit challenging how easy it is to embed an Instagram photo on websites.

The amicus brief challenged the “server test” outlined by the Ninth Circuit holding that websites do not legally “display” a copyrighted image if it is stored on its original website and is merely embedded in search results. Hunley and Brauer argued to the appeals court that now is the time to revisit precedent because with the evolution of technology and platforms, such as Instagram, Twitter, and Youtube. The server test has become “outmoded and impractical.”