In an attempt to provide some clarity, or at least consistency, in the Southern District of New York over the use of embedded social media content obtained from Instagram, the SDNY reconsidered its recent ruling in Sinclair v. Ziff Davis, LLC. In doing so, the court revised its previous finding that Instagram granted a sublicense to Mashable to embed a photographer's public post on its website.
In April, a SDNY judge granted Mashable's motion to dismiss plaintiff photographer's copyright claims over its use of an embedded Instagram photo. Relying on Instagram's Terms of Use, agreed to by Sinclair when she created her social media account, the court found Sinclair had granted Instagram "a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content post[ed] on or through [Instagram], subject to [Instagram's] Privacy Policy." Further, the court determined the Privacy Policy allowed for uploaded "public" content to be used by others as embedded linked content through Instagram's embedding API. Based on these terms and policies, the court was satisfied that Instagram had lawfully sublicensed Sinclair's photo to Mashable.
Earlier this month, however, a different SDNY judge addressed this issue again in McGucken v. Newsweek LLC. Newsweek, relying on the Sinclair decision, moved to dismiss the suit. But in an unexpected ruling, the court refused to dismiss the photographer's copyright infringement claims based on the court's interpretation of Instagram's Terms of Use. The McGucken court acknowledged the possibility that the Terms of Use provide a sublicense for embedded photos but held there was not enough evidence to dismiss the suit.
In the interim, recognizing that a solution has yet to be implemented to address this issue, Instagram recently attempted to clarify its Terms of Use. A spokesperson for the platform announced that "[w]hile our terms allow us to grant a sub-license, we do not grant one for our embeds API . . . [o]ur platform policies require third parties to have the necessary rights from applicable rights holders."
With this in mind and wasting no time, Sinclair moved for reconsideration of the claims against Mashable. In light of the McGucken decision, the Sinclair court reversed its ruling, finding insufficient evidence of any sublicense to Mashable to embed Sinclair's photograph on its website. While the court adhered to its previous ruling that Sinclair had agreed to the Terms of Use, thereby authorizing Instagram to sublicense her public content, it found no evidence that Instagram had exercised this right by extending a license to Mashable.
The court further addressed the multiple possible interpretations of Instagram's allegedly vague terms and policies. It noted that while Instagram's statement that API is intended to "help broadcasters and publishers discover content, get digital rights to media, and share media using web embeds" could be interpreted to grant users the right to embed the public content of others, the statement was susceptible to other interpretations. Because the court found that the terms and policies were insufficiently clear as to whether a sublicense existed, it reversed its earlier decision and determined dismissal of Sinclair's claims was not warranted.
The case is Sinclair v. Ziff Davis LLC, No. 1:18-cv-00790-KMW (S.D.N.Y. June 24, 2020).
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