Does Instagram Own a License to Your Posts?

Imagine you’re a photographer. You post a particularly good shot to Instagram. A large media company approaches you and asks to buy a license to the photo for use in a photo series. You say no. Later that day, you see the media company posting your post on its Instagram Stories, as an embedded link. When you said no to a license, the media company simply shared your post rather than copying it. How is that ok? The media company asked you to use the pic, you specifically said no, and they used it anyway. You sue them.

Unfortunately for one photographer, this hypothetical is real. Stephanie Sinclair’s work has been featured in the New York Times, Time Magazine, and National Geographic, and some time ago she posted a photo of a mother and child to her Instagram account. After posting, the digital media platform Mashable contacted her and asked for a license to use her photo in a story it was putting together about women photographers; Mashable offered her $50 and she refused. Mashable moved ahead with the story anyway, and rather than directly posting her photograph, it simply embedded Sinclair’s original post in its Instagram Stories. Sinclair sued Mashable’s parent company, Ziff Davis, for copyright infringement. Sinclair v. Ziff Davis, 18-CV-790 (KMW) (SDNY, Apr. 13, 2020).

It seems like an open and shut case. Mashable asked Sinclair for a photo license, thus demonstrating that it thought a license appropriate itself. Sinclair refused, notably, because the price was not in her range. And Mashable used the photo anyway. But the Southern District of New York did not agree, holding on April 13 that Mashable used the photo “pursuant to a valid sublicense from Instagram.” When you sign up for Instagram and post an image, the judge reasoned, you agree to Instagram’s Terms and Conditions, which include granting to Instagram a transferable sublicense on all your content, which applies to the site itself. In other words, by posting content to Instagram, you are effectively giving every other Instagram user a license to repost your content - at least on Instagram.

This ruling contrasts with a 2018 Southern District of New York ruling in which the court held that embedding a tweet within a webpage can constitute copyright infringement. Goldman v. Breitbart News Media, LLC, et al., 17-cv-3144 (KBF) (SDNY, Feb. 15, 2018). The two rulings align with the right perspective. In Goldman, the defendants moved the image from one platform to another, jumping over the garden walls of a platform’s Terms and Conditions, and thus infringed a copyright. But in Sinclair, the defendant kept the image within the Instagram platform and thus within Instagram’s user agreement, including its sublicensing provisions. And indeed, it makes sense that when you post an image on a social media platform, one that has a direct option to share other user’s content, you somewhat expect others to use that share feature.

Of course, as Sinclair pointed out, Instagram does have an option to make your account private, which prevents other users from embedding your content into their Stories. But also as Sinclair pointed out, a ruling that posting content publicly creates an effectively universal sublicense creates a draconian dichotomy, between having a public account and risking constant theft of your work, or going private and losing potentially thousands of followers. It may be that Instagram will alter its user service agreement or its functionality in such a way that renders this question moot - perhaps Instagram will add a feature that allows users to choose who can or cannot embed or share their content. It’s also worth noting that even as Instagram currently operates, Sinclair likely could have just blocked Mashable’s account, which would have prevented Mashable from being able to post her image.

This ruling comes from the Southern District of New York, and so at least for now it only applies to the Second Circuit, and photographers outside of the New York, Vermont, and Connecticut areas may have some breathing room. But the reasoning behind the ruling is not unsound and other circuits may adopt this standard, and so be wary and be aware: posting content on Instagram gives every other user a license to repost your work, at least on the same platform, even if you’ve otherwise specifically denied them the use of your content. However, always remember: if someone is reposting your content without your permission, you can always just block them.