I was going to blog Sinclair v. Ziff Davis, LLC, but @MarkJKings explained everything you need to know in a Twitter thread. So, by virtue of the license granted to me by Twitter, I present Sinclair.
Plaintiff Sinclair is a professional photographer. Mashable approached her about including one of her photographs in an article about female photographers and offered $50. She declined, so Mashable published the article anyway, embedding one of Sinclair’s Instagram posts (image now removed but in the record):
Sinclair accused infringementAs you can see from the image, Mashable embedded an image Sinclair published herself to Instagram. Sinclair sued for copyright infringement. And here is where I turn it over to @MarkJKings:
Thoughts on Sinclair v. Ziff Davis, which held that Mashable had a third-party license from Instagram to embed plaintiff’s photograph on its website. #copyright
Read carefully.
— Mark Jaffe. Bay Area by way of Brooklyn. Lawyer. (@MarkJKings) April 15, 2020
The distinction between embedding a photograph or copying and pasting it comes into play, but for different reasons than Goldman v. Breitbart.
Goldman v. Breitbart isn’t the decision to compare this to. Another one is.
— Mark Jaffe. Bay Area by way of Brooklyn. Lawyer. (@MarkJKings) April 15, 2020
I interrupt this thread to explain Goldman v. Breitbart. It was a case that rocked the copyright infringement world. We had all been poking along thinking that the “server rule” made a ton of sense, that is, if you only embedded content on your webpage you hadn’t actually copied anything, so there wasn’t any infringement. Goldman v. Breitbart rejected that theory, holding instead that “when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result.”
Back to @MarkJKings:
The issue in Sinclair is whether, by uploading her photo to Instagram and agreeing to its terms of use, she granted a license to Instagram to sublicense it, and Instagram granted a sublicense for Mashable to embed a photograph.
— Mark Jaffe. Bay Area by way of Brooklyn. Lawyer. (@MarkJKings) April 15, 2020
The photographer agreed to Instagram’s term of use, which allows Instagram to license the work, but you have to look at different places on its site to see how the court gets from point A to point C.
— Mark Jaffe. Bay Area by way of Brooklyn. Lawyer. (@MarkJKings) April 15, 2020
Here’s the Instagram terms of use where the user agrees that Instagram has a license and can sublicense your copyrighted photographs. pic.twitter.com/S8l5086eI2
— Mark Jaffe. Bay Area by way of Brooklyn. Lawyer. (@MarkJKings) April 15, 2020
Here’s a link to the Terms of Use in effect at the time.
And then, elsewhere in the terms of use, it says that “your use of our API is subject to our Platform Policy”, which is another link. pic.twitter.com/AI6B3iKtVy
— Mark Jaffe. Bay Area by way of Brooklyn. Lawyer. (@MarkJKings) April 15, 2020
The Platform Policy says “we provide the Instagram Platform to help broadcasters and publishers discover content, get digital rights to media, and share media using web embeds.” pic.twitter.com/sktmUaBXIm
— Mark Jaffe. Bay Area by way of Brooklyn. Lawyer. (@MarkJKings) April 15, 2020
Here’s the copy of the Platform Policy submitted by the plaintiff. I found it pretty surprising that neither party appears to have submitted copies of either the Terms of Use or the Privacy Policy, but the court nevertheless went digging for them. The court even made a point of saying they had the right one:
Back to Mark:
So based on all of those paragraphs, in there different places in two separate agreements (one incorporated by reference to the one you “agree” to), the court says if your photos are public on Instagram, third parties have the right to embed them.https://t.co/JSKS3StOEC
— Mark Jaffe. Bay Area by way of Brooklyn. Lawyer. (@MarkJKings) April 15, 2020
So the embed distinction matters because the court doesn’t hold that a third party can take someone else’s photo, then copy it and use on their own website.
That probably isn’t within the scope of the sublicense, but the court didn’t need to discuss it.
— Mark Jaffe. Bay Area by way of Brooklyn. Lawyer. (@MarkJKings) April 15, 2020
The court also doesn’t hold that embedding a photograph isn’t copyright infringement. It holds that users grant a license to do it.
It might be, if not for the license, copyright infringement.
— Mark Jaffe. Bay Area by way of Brooklyn. Lawyer. (@MarkJKings) April 15, 2020
That’s why this isn’t comparable to Goldman v. Breitbart.
That case held that embedding a photograph can violate the copyright holder’s display right.
License wasn’t an issue.https://t.co/kNoaPUDbr6
— Mark Jaffe. Bay Area by way of Brooklyn. Lawyer. (@MarkJKings) April 15, 2020
So what’s the decision to compare this one to?
AFP v. Morel v. Getty.— Mark Jaffe. Bay Area by way of Brooklyn. Lawyer. (@MarkJKings) April 15, 2020
In AFP v. Morel, the photographers sued over unauthorized use of a photograph.
Defendants argued they had a third-party license to use the photo because it was posted on Twitter.https://t.co/jSfl8DAScX
— Mark Jaffe. Bay Area by way of Brooklyn. Lawyer. (@MarkJKings) April 15, 2020
The court rejected the third-party license argument. Defendants didn’t adhere to Twitter’s guidelines. They didn’t include the username and it didn’t make the photo look like the Tweet. They didn’t embed the tweet. They just took the photo.
— Mark Jaffe. Bay Area by way of Brooklyn. Lawyer. (@MarkJKings) April 15, 2020
I’m not sure how AFP v. Morel v. Getty would have played out if the defendants embedded the tweet.
But this is the decision to compare Sinclair v. Ziff Davis.
— Mark Jaffe. Bay Area by way of Brooklyn. Lawyer. (@MarkJKings) April 15, 2020
tldr: this decision isn’t about whether embedding a photograph from Instagram is copyright infringement. It still might be, even under this decision.
This decision is about the scope of the Instagram license.
— Mark Jaffe. Bay Area by way of Brooklyn. Lawyer. (@MarkJKings) April 15, 2020
THE END
This result should surprise anyone. This possibility has been noted before.
The plaintiff’s argument that the agreements were too convoluted was not met with sympathy. And as any contract lawyer could have predicted, the fact that the plaintiff had a dilemma, having to choose between private settings and therefore no exposure, or public settings but granting a license, also didn’t garner any sympathy from the court. And I’ll let you guess how the argument that the court wasn’t qualified to interpret the meaning of the legal documents fared for the plaintiff, other than to say that the Second Amended Complaint was dismissed with prejudice.
Sinclair v. Ziff Davis, LLC, No. 18-CV-790 (KMW) (S.D.N.Y. Apr. 13, 2020).
This work is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.
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