On April 13, 2020, an opinion was rendered in District Court in New York regarding “embedding” an image that was available on a public Instagram account of photojournalist Stephanie Sinclair. You can read a detailed post on the issues and the background of this case in our recent article published here. Many of our members and others in the photography and visual creator community have been asking us what they should do now, and what ASMP is doing in response to this ruling. Here is a brief review of the issue, what you can do today, and the steps ASMP is taking to protect our industry and the efforts of all creators.
FAQ’s – Bottom Line
Q: Why does this matter?
A: A ruling like this makes it more acceptable for bloggers, publishers, broadcasters and others who may be able to do so within the rules to use imagery that is not their own on their sites. It opens up a door that is very concerning.
Q: Does this mean that anyone can take any of the work you put on Instagram?
A: No. This is only based on situations when the person who is using the Instagram “Embed” feature using the IG API.
Q: Can some take a screenshot of your IG photo and use it? What about taking it in some other way and using it? Is that ok?
A: No. Taking the image other than using the Embed feature is still likely copyright infringement. This case is very specifically related to using the Embed feature.
Q: Can any commercial company use the embed feature to take work?
A: Unclear, but most likely no. There are intertwined policies here related to who counts as a user who can embed. Individuals who are using the features non-commercially can. Publications and broadcasters (such as Mashable in this case) can do it. A purely commercial company using it for purely commercial reason are supposed to get permission from the user… but who knows. This is one of the things we are asking IG to clarify.
Q: Can a “Business” or “Creator” account be set to private?
A: No. This is a major problem, and one of the things we are asking IG to fix. Right now, to go private you have to downgrade to a personal account, and that is a non-starter for many who rely on IG for analytics, advertising, etc. This is a significant part of our ask.
Q: Does this mean that I can’t sue someone in my state related to this?
A: No, but… Rulings at a District Court level (such as this one) mean that other courts in other circuits are not required to follow this logic. If the case is appealed and then higher courts make the same ruling, then it would apply elsewhere. But you don’t really want to test this right now. Let’s see how this plays out in general.
Read below for the current status and what we are recommending, as well as some resources you can use today. And if you want to read significantly more about this case, check out the article I wrote a few days ago that goes into great detail.
Earlier this week Ms. Sinclair’s copyright infringement lawsuit against online publication Mashable, Inc. was dismissed without a trial when the court found that because Ms. Sinclair’s Instagram profile was public (and not private) that she was not entitled to argue infringement when a third-party user embedded her work on its site via Instagram’s API. The court found that when the image was posted publically, Instagram’s Terms and Conditions automatically conveyed an unlimited sublicense to Instagram and, if a user such as Mashable followed other policies and legal terms, that the sublicense was then granted to the publication to use the image based on a sublicense from Instagram that allowed that type of embedding through the API. If you set your Instagram profile to be a “private account” that action would prevent this type of embedding use.
But realize that there is one more very disconcerting twist here: the only types of Instagram accounts that can be made “private” are personal accounts. That’s right… business and creator accounts cannot be made private. So we have heard of some who are downgrading their accounts to personal in order to go private. This is an unfair and unnecessary barrier to privacy. Not to mention losing data such as analytics, lead generation, etc. One final option some have mentioned is “watermarking” your images. Only you can decide the balance between your business, your profile, and your choices of account and privacy. But tough choices they are.
What ASMP Is Asking Instagram To Do
ASMP is continuing to follow this case and has already been in contact with Ms. Sinclair’s attorneys. Most immediately, ASMP is drafting a letter, which is being supported and signed by multiple other visual arts organizations, that asks Instagram to close this loophole by allowing photographers to prevent embedding on an account-wide and individual image basis. This is not a technically difficult proposition for the largest image-sharing platform in the world. In fact, YouTube, which in many ways is the video analog of Instagram, allows users to prevent their videos from being embedded outside of the YouTube channel it is uploaded to. There is no reason Instagram should not be able to do this. The Instagram platform should not be used to encourage uses of works that are not intended by the creator. Period.
How You Can Take Action
You may have seen images posted to Instagram from photographers and artists who have made their accounts private based on this ruling. But as an additional step, you can change your bio to explain exactly why you are doing so. If you choose to make your Instagram account private, here is a short, informative statement that can fit within the 150 character limit of the bio field:
Account is private to block embedding of my images. Click “follow” to request access.
Additionally, ASMP, along with the National Press Photographers Association, Professional Photographers of America, American Photographic Artists, North American Nature Photographers Association, and Graphics Artists Guild, have created two Instagram sized graphics you can download and post to your Instagram feed to let people know why you have taken this step and includes a quote from the court opinion. Download the main graphic here, and the second image with the quote from the court here. See the graphics below.
ASMP will be updating this story as it develops and will post the letter when it is sent to Instagram. We thank all of our members for being part of ASMP and allowing us to stand up for you in this, and other situations.