MAJOR UPDATE – December 17, 2021 – Instagram today announced that users can now choose if they wish to allow their images to be embedded on third-party websites. To learn more, check out ASMP’s announcement here.
ASMP has been supporting Ms. Sinclair’s legal team on this case, and this ruling would appear to be a win for her and her team in addressing some of the elements of this case.
A Facebook company spokesperson stated “[o]ur 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.”
Overview of Recent Court Decisions Prompting Response from Instagram
Instagram’s statements directly contradict the recent court decision from the United States District Court for the Southern District of New York in the Sinclair v. Ziff-Davis case. (To read the letter drafted by ASMP on behalf of all the major visual creator groups, click here. You can also read all of ASMP’s writings on the Sinclair case here and here, and a writeup on the McGucken case here.)
In this case, photographer Stephanie Sinclair had a public profile on Instagram and one of her photos was used by Mashable.com without her permission or proper compensation – and expressly against her wishes.
What Did Instagram Have to Say About It?
It is imperative we continue to advocate for substantial and explicit changes in the Instagram Terms of Service and associated Policies.
Since Sinclair and McGucken have already provided for lower court decisions that conflict one another on the exact same legal issue, and in the same circuit, it is hopeful that a higher court will be forced to resolve this issue once and for all, providing for clear legal precedent moving forward. Until then, it’s a waiting game for how photographers should move forward in attempts to protect their work on social media platforms such as Instagram.
Despite all of these findings, it is clear that the upcoming decision in McGucken and the controversy holding in Sinclair will have to come to a head at some point in order to resolve these contentious issues. For obvious policy reasons, the standard culture of the web which allows websites to “feel free to embed Instagram posts on their own sites without worrying about copyright concerns” clearly delineates the principals of copyright law, striping fundamental protections that photographers should have in their work.
You can be sure ASMP and our legal team will be there to advocate on behalf of photographers and creators everywhere.