When it comes to appropriating images found online, the situation is understandably confusing. If an individual posts something on social media, does that give someone else the right to use it in a different forum? Most lawyers would likely answer, "Not so fast," and yet on Monday came a suggestive ruling perhaps otherwise from a New York federal court.
The plaintiff in the case is Stephanie Sinclair, a professional photographer known for exploring gender and human rights issues around the world. Her work has been featured in The New York Times, Time magazine and National Geographic. She uploaded one of her photographs — an image of a mother and child in Guatemala — to Instagram. Later, the news site Mashable contacted her because it wanted to re-use the image for a story on female photographers. Mashable offered $50. Sinclair declined. Mashable used the image anyway by embedding her Instagram post in its story. Sinclair claimed copyright infringement.
How would the case play out? Would it turn on application of the so-called "server test," where liability for direct infringement depends on where the infringing images are stored? Two years ago, in a case that involved an embedded image of NFL quarterback Tom Brady, a different New York federal judge rejected the server test and ruled that news websites could be liable for using embedded images. That ruling had throngs of lawyers expressing concern about a potential disruption to the online ecosphere.
Oddly, that decision in Goldman v. Breitbart gets only a brief mention in yesterday's opinion — basically, a footnote to explain the embedding process. Instead, U.S. District Court Judge Kimba Wood decides to veer in a totally different direction, and in so doing, light potential fireworks.
"Here, [Sinclair] granted Instagram the right to sublicense the Photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph," rules Wood.
Wood comes to this conclusion by discussing how Sinclair agreed to Instagram's Terms of Use when creating her account. Those terms granted to Instagram "a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content."
Wood writes that because Sinclair "uploaded the Photograph to Instagram and designated it as 'public,' she agreed to allow Mashable, as Instagram’s sublicensee, to embed the Photograph in its website."
For years, there's at least been some theoretical concern in the creative community about what rights are forfeited by using social media to share expression. Almost a decade ago, Warner Bros. bought rights to a story that was posted on Reddit — leading THR, ESQ to examine whether the studio actually held exclusive movie rights. A few years later, Sony was primed to do battle over the creepypasta internet meme that had formed the basis for a horror film. The case settled.
Now Wood comes out with an opinion that addresses Sinclair's arguments — many of which have been bandied about by others in different contexts.
The judge rejects the proposition that Mashable had to get a license directly from Sinclair or that it's not within the court's purview to analyze the meaning of Instagram's agreements and policies. Further, the ruling shoots down the argument that Mashable had no license because it wasn't the intended beneficiary of Instagram's terms of use.
The opinion (read below) runs through more legal arguments before getting to something that could spread chills in the creative community.
Sinclair "argues that it is unfair for Instagram to force a professional photographer like [her] to choose between 'remain[ing] in "private mode" on one of the most popular public photo sharing platforms in the world,' and granting Instagram a right to sub-license her photographs to users like Mashable," writes the judge. "Unquestionably, Instagram’s dominance of photograph- and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that Plaintiff’s dilemma is a real one. But by posting the Photograph to her public Instagram account, Plaintiff made her choice. This Court cannot release her from the agreement she made."
