Instagram’s Bombshell on Copyright for Embedded Images

In response to recent developments in a lawsuit between pro photographer Elliot McGucken and Newsweek, Instagram told tech publication Ars Technica via email last week that it does NOT grant a sub-license to anyone who uses their “embed” feature to share a public photo.

The announcement most likely came as a shock to users who believed that embedding images, rather than hosting them directly, provides protection against copyright claims.

Said Facebook's representative: "Our 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."

In April, Mashable won a lawsuit against photographer Stephanie Sinclair after Sinclair refused to allow the website to share her photos and Mashable published them anyway via Instagram’s embed feature. That prompted Sinclair to sue for copyright infringement; she lost that suit.

According to Ars Technica, The Newsweek suit centered around McGucken's rare photo of an ephemeral lake in Death Valley that was filled with flood water. Newsweek asked to license the image, but McGucken turned down their offer. So instead Newsweek embedded a post from McGucken's Instagram feed containing the image.

McGucken sued for copyright infringement, arguing that he hadn't given Newsweek permission to use the photo. Newsweek countered that it didn't need McGucken's permission because it could get rights indirectly via Instagram. Instagram's terms of service require anyone uploading photos to provide a copyright license to Instagram—including the right to sublicense the same rights to other users. Newsweek argued that that license extends to users of Instagram's embedding technology, like Newsweek.

Despite the Mashable ruling, Judge Katherine Failla refused to dismiss McGucken’s suit against Newsweek, saying that there "wasn’t enough evidence to determine that Instagram’s terms of service provides a sub-license to use every embedded photo."

As Ars Technica reported, "Before you embed someone's Instagram post on your website, you may need to ask the poster for a separate license to the images in the post. If you don't, you could be subject to a copyright lawsuit."

Ars Technica went on to say that, "Professional photographers are likely to cheer the decision [in the Newsweek case], since it will strengthen their hand in negotiations with publishers. But it could also significantly change the culture of the Web. Until now, people have generally felt free to embed Instagram posts on their own sites without worrying about copyright concerns. That might be about to change."