Court Reconsiders Mashable's Win in Embedding Suit

Does Instagram give embedders a sublicense to use copyrighted images? A court now says the answer is ambiguous.
CHANDAN KHANNA/AFP/Getty Images

A New York federal judge has reconsidered a controversial decision that had the photography community buzzing. It turns out that Mashable can't easily escape a copyright lawsuit by pointing to Instagram's terms.

As previously recounted, the suit was filed by Stephanie Sinclair, a professional photographer known for exploring gender and human rights issues around the world. Mashable contacted her because it wanted to use one of her images 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.

In April, U.S. District Court Judge Kimba Wood granted a motion to dismiss with a provocative opinion that leaned on how Sinclair had signed up for Instagram service and had posted some of her work there. "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," ruled Wood at the time.

Since then, in a somewhat  similar copyright suit against Newsweek, a different federal judge wasn't so ready to throw out a case. That judge acknowledged the possibility that Instagram's terms could be read to grant a sublicense to embedders, but thought it was premature to decide so on a motion to dismiss. 

Subsequently, Ars Technica reporter Timothy B. Lee decided to ask Instagram about its own interpretation about the terms. Do photographers give up exclusive rights by posting on Instagram?

"While our terms allow us to grant a sub-license, we do not grant one for our embeds API," a company spokesperson told Ars. "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."

Meaning that embedders shouldn't assume things. To be truly safe, embedders should contact the rights-holders of images in any embed.

In Sinclair's suit against Mashable, Wood is now backing off her original conclusion just a bit.

The judge maintains that by agreeing to Instagram's terms, Sinclair authorized the social media service to grant users a sublicense to embed. But there's a difference between having power and using power.

"The Court does, however, revise the Opinion by finding that the pleadings contain insufficient evidence that Instagram exercised its right to grant a sublicense to Mashable," writes Wood in granting a motion for reconsideration. 

Wood adds that she "did not give full force to the requirement that a license must convey the licensor’s 'explicit consent' to use a copyrighted work," and pointing to several cases including the Newsweek one from a few weeks ago, now rules that Instagram's policies are susceptible to more than one interpretation. As such, because Sinclair can make a plausible argument that Instagram didn't explicitly sublicense, a motion to dismiss is now being denied.

Here's the full ruling...