On April 13, 2020, a federal district court in the Southern District of New York held in Sinclair v. Ziff Davis, LLC, and Mashable, Inc., 180CV0790 (KMW) (Order), that an Instagram user who posted a photograph to a public account effectively gave Instagram the right to sublicense her photographs to a third party. The Court held that the user therefore had no viable claim against the third party for copyright infringement.
The plaintiff user in this case was professional photographer Stephanie Sinclair (Plaintiff). The co-defendant who licensed the photograph from Instagram was Mashable, Inc., a media and entertainment site (Mashable). Plaintiff sued both Mashable and its parent company, Ziff Davis, LLC, for copyright infringement.
Plaintiff posted an image on her then-public Instagram account titled “Child, Bride, Mother/Child Marriage in Guatemala” (Photograph), for which she owns the exclusive United States copyright. See Order at 1. On March 11, 2016, a Mashable employee attempted to license the Photograph from Plaintiff for $50 for use in an article about female photographers. See id. at 2. Plaintiff declined Mashable’s offer, but Mashable included a copy of the Photograph in its article anyway.
The Court found none of Plaintiff’s arguments persuasive.
The Court refused to release Plaintiff from the agreement she made with Instagram and countered all her objections as follows:
- First, Plaintiff’s right to grant a license directly to Mashable was completely separate and independent from Instagram’s right to grant a sublicense. See Order at 5.
- Second, Mashable need not be an intended beneficiary of Plaintiff’s agreements with Instagram because Plaintiff authorized Instagram to grant a sublicense to anyone who uses Instagram’s API. See id. at 6.
- Fourth, Plaintiff failed to identify any inconsistent terms in Instagram’s agreement conveying a valid license. A user may not upload another user’s intellectual property to Instagram, but once a user posts content legally, Instagram may sublicense that user’s intellectual property legally. See id. at 7.
- Finally, the Court acknowledged the dilemma professional photographers face between posting on Instagram and risking that their content may be sublicensed, and not posting on Instagram and losing a significant amount of exposure. See id. at 8. But the Court concluded that Plaintiff made her choice to create a public Instagram account and must now abide by the agreement she made. See id.
The Court dismissed Plaintiff’s complaint with prejudice against both Mashable and its parent company. While the Court’s holding is not binding authority in any state or federal court, the decision should serve as a note of caution to Instagram users—particularly professional photographers looking to advertise on Instagram. Caveat emptor, Instagram users: Your posts to a public account are not solely your own to distribute.
 The judge was Kimba Wood, a one-time nominee for attorney general under Bill Clinton and high-profile federal jurist. In 2018, she oversaw a case involving Michael Cohen, President Donald Trump’s former personal attorney, and ordered Cohen’s attorneys to reveal that Fox News talk-show host Sean Hannity was also a client of Cohen’s.
 Sinclair’s Instagram account is now private.
 See Order at 2 for a more detailed explanation of embedding.