Professional photographers and content creators on Instagram: your professional lives just got more difficult.
Did you know that when you post your photographs on Instagram, under Instagram’s Terms of Service, you “grant[ed] to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the content that [he/she] post[s] on or through [Instagram]”? According to the District Court for the Southern District of New York, you are doing exactly that.
As the old saying goes, the devil is in the details: Instagram’s Terms of Use.
The Facts: The case is a copyright infringement lawsuit brought in federal court in New York: Stephanie Sinclair v. Ziff Davis, LLC, and Mashable, Inc., 1:18-cv-00790 (SDNY, April 13, 2020. Please note that you can read the court’s opinion in this matter below.
The background is pretty simple. Mashable wanted to feature a photograph of Ms. Sinclair’s that she had posted to her Instagram account, which is public. According to the court’s opinion, Mashable contacted Ms. Sinclair with a request to license her photograph. They never reached an agreement. Then Mashable embedded the photograph anyway, without express permission from the Plaintiff.
The court’s ruling in this case is that Mashable did not commit copyright infringement when it embedded a photograph taken by Ms. Sinclair in a story on Mashable’s website, because Instagram’s Terms of Use allows third parties to embed the content.
Action Item: If you make a living through your images, watermark the pieces you post to Instagram, because anyone sharing your post, unless they obtain a license from you directly, must post the picture with the watermark. Why?
Here’s why: Removal of a watermark from a photo constitute a violation of the Copyright Act.
The penalties for illegally removing a watermark are steep, including monetary penalties ranging anywhere from $2,500 to $25,000 for each violation (which the court can TRIPLE if the violations continue after the judgment in entered), plus criminal penalties of a maximum fine to $500,000 or imprisonment not to exceed 5 years. 17 USC §§ 1203(B), 1204(1).
Action Item: Consider making your professional Instagram page private, which would prevent just anyone from embedding your post into third party content.
Thought Experiment: What if the third party website in this story was not a news site, but instead a site which posted adult content, or political content with which you vehemently disagreed? You would have no recourse - except to delete the post itself from Instagram, or mark your account private.
456433752 Stephanie Sinclai... by Bryan Tuk on Scribd