Instagram Wins Lawsuit Over Embedded Photos Alleged to Breach Copyright
According to Gizmodo, a three-judge panel from the 9th U.S. Circuit Court of Appeals has sided with Instagram, which is owned by Meta, in a copyright infringement case brought by two photographers. The main argument was that Instagram had violated copyright laws by allowing external websites and publications to embed images without obtaining explicit permission from the creators of the content.
The case dates back to 2016, when Time embedded an Instagram photo of Hillary Clinton taken by photographer Matthew Brauer without permission. In 2020, Buzzfeed did the same with Alexis Hunley’s photo of a Black Lives Matter protest. The photo couple sued Instagram, claiming the social media company never asked third parties for permission to embed copyrighted photos or videos, opening them up to secondary infringement.
The lawsuit was originally filed in California in 2021, but was dismissed by a judge on the grounds that the news outlets in question failed to save the original image or even show a copy of it. Rather, it only showed what was already available through Instagram as an embed. The couple appealed the decision, which has now failed in federal court. The reasoning follows the same lines as the California decision, with the justices agreeing that when a photo or video is embedded, no copy is made of the underlying content.
It’s worth noting, however, that a panel of federal judges found that Hunley and Brauer raised “serious and valid” policy concerns about the ability of copyright holders to control and ultimately profit from their work. Instagram has also addressed the issue over the years, adding an option in 2021 that allows users to make images non-embedded. This change came after the platform was lobbied by the American Society of Media Photographers (ASMP) and the National Press Photographers Association (NPPA).
That may not be the end of the case, as Reuters reports that photographers can request the practice of a panel of 11 randomly selected judges, though Brauer and Hunley have not addressed that modus operandi.
This is also the underlying meaning of this court decision. The decision itself shows that third parties, such as media publications, can embed images and videos as they wish without ever asking the original content creator for permission. However, related cases have come out with different outcomes, which at some point has created a platform for a showdown in a higher court.
For example, a New York judge issued a somewhat controversial ruling back in 2018 when a photographer sued several publications after they embedded tweets in an original photo of NFL legend Tom Brady. The judge sided with the Photographer here, stating in his decision that “the fact that the image was hosted on a server owned and operated by an independent third party does not protect them from this result,” adding, “Nowhere does the Copyright Act suggest that possession of the image is necessary to display it. In fact the intent and wording of the law support the opposite view.
