In a less than surprising development, Instagram was sued in the Northern District of California on May 19, 2021 by two photojournalists in a class action accusing the social media giant of violating copyright law by facilitating the practice of embedding images on third-party websites for its financial gain.

The lawsuit alleges that Instagram is liable for inducing copyright infringement, contributory copyright infringement and vicarious copyright infringement by offering an easy-to-use embed tool that allows widespread distribution of copyrighted images, resulting in financial gain to Instagram and its parent Facebook. Moreover, the suit alleges, copyright owners have no way to control embedding or even to track which sites have embedded their content.

Instagram misled the public to believe that anyone was free to get on  Instagram and embed copyrighted works from any Instagram account, much like eating for free at a buffet table of photos, by virtue of simply using the Instagram embedding tool.

Citing a news article, Plaintiffs allege that Instagram essentially “threw its users under the bus” when in June 2020 a spokesperson for Facebook stated that, although Instagram’s terms of use allowed it to grant sub-licenses for posted content, in fact third parties had to seek permission from copyright owners to embed their images.

Last fall we reported on developments that have cast doubt as to the long-assumed legality of this practice, which allows images, including copyrighted images, to be displayed on a third-party website through an embedding application programming interface (API). The API allows the image to be displayed on the third-party website in its entirety without being stored on its server. Our insight reported that in the Ninth Circuit the so-called “server test” (requiring that an image be stored on a third-party’s server in order to establish liability for copyright infringement) was still alive and well, but that the Southern District of New York had rejected that test.

We cited a New York lawsuit by well-known photographer Stephanie Sinclair against Mashable for embedding a photo from her Instagram. The Court granted Mashable’s motion to dismiss on the grounds that Sinclair had effectively granted a sublicense to social media platform Mashable, but granted a motion for reconsideration on the issue of whether Instagram’s terms of service established the user’s “explicit consent” to sublicense the copyrights to their images. However, in early 2021 the parties reached a confidential settlement, and the sublicense issue was not further litigated.

However, there is another similar case pending in the Southern District of New York. Elliott McGucken, a landscape photographer, sued Newsweek for embedding his image of an ephemeral lake in an article. The Court denied Newsweek’s motion to dismiss, finding, inter alia, that at that stage Newsweek had failed to provide any evidence of a sublicense between Instagram and Newsweek. McGucken v. Newsweek LLC, 464 F. Supp. 3d 594 (S.D.N.Y. 2020), reconsideration den. 2020 U.S. Dist. LEXIS 192987 (S.D.N.Y. Oct. 19. 2020). The plaintiff filed a motion for summary judgment on May 21, 2021.

Instagram will undoubtedly mount a vigorous defense. We will monitor this case and McGucken and report on developments in the ongoing controversy over embedding copyrighted images. Meanwhile, if you have any questions about use of your copyrighted image or your use of third-party materials, do not hesitate to contact us.