Instagram’s Surprise Headache for Digital Publishers

The social network’s parent company, Facebook, recently revealed that it was not sublicensing Instagram images used in website embeds—which could create headaches for associations and others that share their social images.

Copyright is a complicated beast on the internet—and it could threaten to get a whole lot more complicated in the coming years, thanks to a pair of legal decisions and an ensuing policy change on the part of Instagram.

It’s a saga any association that embeds social media content on their platforms should be aware of.

Here’s what happened. A few years ago, the news site Mashable used a photo by a photographer, Stephanie Sinclair, in a fairly sneaky way: After Sinclair declined to license her photo to Mashable for $50, the publisher got around this by using an Instagram embed of the same photo, essentially piggybacking off of Instagram’s license to republish the photo.

Sinclair sued—and Mashable won that case back in April. Now, a second case involving Newsweek and photographer Elliot McGucken appears to be leaning the other way—with Newsweek failing to get McGucken’s case dismissed last week.

If this was where things stood, it would still be a complicated situation worth watching. But Instagram and its parent company, Facebook, threw a wrench into the works last week—telling Ars Technica in a statement that Instagram’s terms of use did not treat embeds as a sublicense of the original uploaded photo.

“While our terms allow us to grant a sub-license, we do not grant one for our embeds API,” a Facebook spokesperson told the outlet. “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.”

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

This likely complicates Newsweek’s case, but it also makes the concept of embedding Instagram posts on external sites a lot more complicated.

“Wow. That is going to blow up the Sinclair case,” noted James Grimmelmann, a Cornell copyright scholar, in comments to Ars.

Gizmodo further broke down the call by Instagram and noted the complicated nature of the “server test,” a legal theory that suggests that the infringer is the one actually sharing the user’s content on their server, which would put the onus on Instagram. That hasn’t held up in court particularly well over the years—sometimes winning over judges, but other times not.

It’s not clear what will happen with the Newsweek case yet, but one thing that is clear is that it will be complicated, and that Instagram’s stance is going to create problems for end users who embed images on their site—including associations.

Bad News for Publishers

Instagram’s line in the sand is likely good for professional artists and photographers who previously have had to give up some of their rights just to post on social media platforms.

But for websites that have shared embeds from Instagram in the past, this creates a complicated situation—essentially because it appears to be a change in perspective on Instagram’s part. After all, why make it possible to embed posts externally at all if the company wasn’t going to offer legal cover for using its service in this way?

Social networks have long offered ways to share their content externally, particularly Twitter and YouTube, two networks whose ubiquity would be far smaller than it is if they didn’t have embed functionalities.

By essentially throwing out this licensing protection years after putting it in place, Instagram is potentially putting publishers acting in good faith—i.e., those who didn’t publish embeds on their websites after explicitly being denied a license to the work—at a liability risk.

And the crazy part is that this problem was essentially solved by a competing social network, Flickr, years ago. That network allows photographers to put licensing rights right onto the photo page, so the situation is clear. If Instagram did something similar—which is already being bandied about on photography sites—this problem would be moot.

Embed With Care

The good news for associations is that other social networks have not made similar calls, but it nonetheless represents an opportunity to offer a refresher on what associations should do when it comes to sharing someone else’s content online. A few thoughts:

When in doubt, ask—and respect the choice. In both the Mashable and Newsweek lawsuits, the news outlets effectively got sued not for simply embedding the photos, but for embedding after they were explicitly denied a license. It’s not hard to respect the wishes of a creator—simply ask them. If they want to give a license to you, they will. (They may charge.) If they don’t, there are lots of other images on the internet. It’s not hard.

Consider Creative Commons options. Images and other work uploaded via Creative Commons, a topic I’ve written about a few times over the years, are great for the internet because they make sharing clear. Look to tools like Unsplash, which have interesting models even if they differ from Creative Commons to a degree, if you’re in need of a good photo or three.

Look into making content licensing part of any attendance agreement for events. Perhaps it’s a little soon to think about social media in the context of conferences amid COVID-19, but when we do go back to in-person events, attendees are going to pull out their phones. Already, some events ask for a blanket right to use event-related photos uploaded to social media for promotional purposes. Such policies will become even more important now that Instagram is publicly putting the onus on external publishers.

Depending on your use case, you don’t want a surprise on your hands when you use an image. The Instagram embed controversy is a bit of a surprise—but fortunately, other options abound.

(Wachiwit/iStock Editorial/Getty Images Plus)

Ernie Smith

By Ernie Smith

Ernie Smith is a former senior editor for Associations Now. MORE

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