You Could Get Sued for Embedding Instagram Content on You Site

Question: If you are embedding images from Instagram, rather than hosting them directly on your site, do you think you are shielded against copyright claims?

If you though Yes, like me you are wrong. Apaprently, Instagram does not provide users of its embedding API a copyright license to display embedded images on other websites.

Before you embed someone’s Instagram post on your website, you may need to ask the poster for a separate license to the images in the post. If you don’t, you could be subject to a copyright lawsuit.

Newsweek recently found this out the hard way. Photographer Elliot McGucken took a rare photo (perhaps this one) of an ephemeral lake in Death Valley. Ordinarily, Death Valley is bone dry, but occasionally a heavy rain will create a sizable body of water. Newsweek asked to license the image, but McGucken turned down their offer. So instead Newsweek embedded a post from McGucken’s Instagram feed containing the image.

McGucken sued for copyright infringement, arguing that he hadn’t given Newsweek permission to use the photo. Newsweek countered that it didn’t need McGucken’s permission because it could get rights indirectly via Instagram. Instagram’s terms of service require anyone uploading photos to provide a copyright license to Instagram—including the right to sublicense the same rights to other users. Newsweek argued that that license extends to users of Instagram’s embedding technology, like Newsweek.

Newsweek had reason to be optimistic about this argument because Mashable won a very similar case in April. The judge in the Mashable case ruled that photographer Stephanie Sinclair “granted Instagram the right to sublicense the photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the photograph.”

But in a surprise ruling on Monday, Judge Katherine Failla refused to dismiss McGucken’s lawsuit at a preliminary stage. She held that there wasn’t enough evidence in the record to decide whether Instagram’s terms of service provided a copyright license for embedded photos.

Instagram’s decision to throw users of its embedding API under the bus makes the server test crucial for cases like this. If the server test is adopted outside the 9th Circuit, it could provide a legal basis for the continued use of embedded Instagram posts. On the other hand, if the 2nd Circuit—which covers New York—ultimately rejects the server test, then it would become legally hazardous to use Instagram embeds without a separate copyright license.

Shitty move on Instagram’s part if you ask me.