Our last article looked at the issue of control of copyright on social media platforms following the recent case, Sinclair v Mashable.
Only 2 months after the Sinclair decision, the U.S. District Court for the Southern District of New York has revised its position in a new case, McGucken v Newsweek.
A tale of two cases
In very similar conditions to Sinclair, Newsweek had published an article featuring an embedded Instagram post of photographer, Elliot McGucken, without his permission.
Relying on the ruling in Sinclair, Newsweek argued that because the image was posted to McGucken’s ‘public’ profile, it could rely upon Instagram’s terms of service.
However, despite the Sinclair decision, the court refused to dismiss McGucken’s case. While the court did accept that Instagram has the right to sublicense publicly posted photographs to other users, it concluded that there was insufficient evidence to prove that Instagram had sub-licensed the photo to Newsweek.
Instagram weighs in
Instagram has released a statement clarifying its position on the issue, stating:
“While our terms allow us to grant a sub-license, we do not grant one for our embeds API… 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.”
So, the court’s decision combined with Instagram’s statement on the issue has now emphatically altered the legal position set out in Sinclair.
What does this mean for you?
Photographers and other creators wishing to have stronger control over their copyright when sharing their photographs online will welcome this development.
However, this decision also serves as a strong warning to businesses (especially digital media outlets) to ensure they obtain the correct permissions before using or embedding a photographer’s work onto their website.