On April 13, 2020, a federal district court in the Southern District of New York[1] 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[2] 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 that Mashable effectively (and legally) licensed Plaintiff’s photograph from Instagram by displaying Instagram’s content on its website.  Instagram enables access to content posted by users with public accounts via a service called “application programming interface” or API.  See Order at 2.  With API, websites like Mashable can display public Instagram posts by incorporating an “embed code,”[3] which allows the websites to retrieve the embedded content (such as an image) from Instagram’s server.  See Instagram Privacy Policy, Parties With Whom You May Choose To Share Your User Content § 2 (hereinafter “Privacy Policy”).  Instagram’s Terms of Use provide that Instagram users grant Instagram a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license” to the content they post.  See Terms of Use, Rights § 1.  By creating an Instagram account, Plaintiff agreed to the Terms of Use.  Thus, Plaintiff agreed to license the Photograph to Instagram (and to allow Instagram to sublicense it) when she posted it to her public account.  See Order at 5.

Plaintiff had several objections to Mashable’s argument that it obtained a valid sublicense from Instagram.  Plaintiff argued that Mashable failed to license the Photograph directly from her and therefore should not be allowed to obtain a sublicense of the Photograph from Instagram.  See Order at 5.  She also claimed that any agreements she signed with Instagram could not confer on Mashable the right to use the Photograph because Mashable was not an intended beneficiary of any of the agreements.  See id. at 6.  Further, Plaintiff argued that: (1) any authorization she inadvertently gave Instagram to sublicense the Photograph was invalid because the Terms of Use she signed upon joining Instagram were overly complex and inaccessible; and (2) the agreements could not convey a valid sublicense because they contained contradictory terms.  See id. at 6-7.  She also appealed to the Court’s sense of equity, arguing that it was unfair for Instagram to force a professional photographer to choose between remaining in private mode on a wildly popular photo-sharing platform and granting Instagram a right to sublicense her photographs to third- party users.  See id. at 7-8.

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.
  • Third, Instagram’s incorporation of its sublicense agreement across two documents (the Terms of Use and the Privacy Policy) is acceptable under California law, which allows a document to incorporate another by reference (even if the document is more unwieldy and inaccessible as a result). See id.
  • 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.

[1] 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.

[2] Sinclair’s Instagram account is now private.

[3] See Order at 2 for a more detailed explanation of embedding.