Instagram users have embedded images in their posts, believing that they were protected against copyright claims. Facebook now explains that, “while our terms allow us to grant a sub-license, we do not grant one for our embeds API.” In other words, a user who embeds someone’s Instagram post on her website has to ask the poster in advance for a separate license to the post’s images. Those who don’t could be subject to a lawsuit. Professional photographers will be able to better negotiate with publishers based on these terms.
Ars Technica reports Facebook added that, “our platform policies require third parties to have the necessary rights from applicable rights holders … [which] includes ensuring they have a license to share this content, if a license is required by law.” This could “significantly change the culture of the Web,” it says.
Newsweek, for example, asked to license photographer Elliot McGucken’s image of a lake in Death Valley. When he declined, Newsweek instead “embedded a post from McGucken’s Instagram feed containing the image” — and McGucken sued for copyright infringement. Because Instagram’s “terms of service require anyone uploading photos to provide a copyright license to Instagram,” Newsweek argued that “it didn’t need McGucken’s permission because it could get rights indirectly via Instagram … [because] that license extends to users of Instagram’s embedding technology.”
In April, a court found Mashable had a sub-license to display Stephanie Sinclair’s photograph, but “in a surprise ruling on Monday, Judge Katherine Failla refused to dismiss McGucken’s lawsuit at a preliminary stage,” saying that “there wasn’t enough evidence in the record to decide whether Instagram’s terms of service provided a copyright license for embedded photos.” Now that Instagram has “explicitly claimed” that Newsweek doesn’t have a sub-license, it “throws the entire premise of Newsweek’s defense into doubt.” With this announcement, “Instagram is preventing future defendants from using Mashable’s argument.”
Instagram users “can block embedding of their posts by switching their Instagram account to private … but that will also prevent users on the Instagram platform from seeing their content, too, which can be a career liability for professional photographers.” The company “offers no option to make content public inside the Instagram app while disabling embedding on external websites.”
The Next Web reports that Instagram’s stance is “super confusing” because “you can’t post publicly and switch a toggle to disable embed codes.” “Chances are that you might not know that the company doesn’t provide sub-licensing for embedding posts,” it says. “Plus, there’s no process of obtaining licensing or permission from creators apart from DMing them or finding out their details if they’ve listed them on their profile. If Instagram doesn’t clear up their stance, usage of its embed API can lead to more lawsuits and confusion in media.”