Takeaway: Be careful when using Instagram’s embedded application programming interface (API) in any of your online content, as it is undecided if it triggers a sublicense based on a provision in Instagram’s Terms and Conditions, which would allow others to use your content without violating any copyright rights.
In the pending case Sinclair v. Ziff-Davis, it is being decided whether publicly posting a photograph on Instagram triggers a sublicense based on a provision in Instagram’s then-existing Terms and Conditions. This could mean that content posted to a public Instagram account might result in a non-exclusive, transferable license being granted to Instagram. Based on its Terms and Conditions, this provision could allow other Instagram users to access the content and direct a web browser to retrieve the content for incorporation into, for example, an article on the web. In the case, the Court initially ruled against a photographer who posted a photograph on Instagram, which was then re-displayed by a third party on its own website.
Shortly thereafter, however, another judge in the Southern District of New York considered the same issue (a photograph publicly posted on Instagram and then re-used via Instagram’s embedded API), but ruled differently than Judge Wood in the Sinclair case. The distinction appears to be whether the sublicense was actually granted or merely implied to have been granted.
In the Sinclair case, a sublicense appears to have been implied or granted by operation of law. In this case, the Court denied a defendant’s motion to dismiss because, considering the allegations in the complaint in a light most favorable to the plaintiff-photographer, as it must under applicable law, the Court could not assume a sublicense had actually been granted or implied by Instagram to Newsweek. This ruling appears to limit the impact of Sinclair. Also, Instagram may have clarified or modified its rules on this issue as well.
Notably, not long after the second case on this issue, Judge Wood, despite previously ruling against the photographer in the Sinclair case, granted a motion for reconsideration in which she did not change her view that publicly posting a photograph on Instagram gives Instagram a license to further sublicense the photograph. Judge Wood, however, reversed her prior decision because the question of whether Instagram’s Terms and Conditions, in a sense, automatically sublicenses the work to others, or requires additional steps for a sublicense to be granted, was a question of contract interpretation that could not be resolved on a motion to dismiss. Thus, Judge Wood undid her dismissal in Sinclar for further consideration. Her new order, however, seems to suggest that the sublicense may not be automatic.
This is an issue surely to be hotly litigated in the future as to online platforms and postings.