Reed Smith Client Alerts

Entertainment and multimedia companies received a relative victory this month in the U.S. District Court for the Southern District of New York. In the case, Sinclair v. Ziff Davis, LLC, the defendant, the multimedia entertainment platform Mashable, was found to not have infringed the copyright of a photographer when it used embedded content from the photographer’s Instagram account without her permission. The decision hinged on the language in Instagram’s terms of use and privacy policy, which provided that users granted a “transferrable” license to content that is marked as “public.”

Authors: Sarah L. Bruno Donald A. Cespedes

The case has been one to watch in the entertainment industry, as it has been unclear where the Second Circuit has stood with respect to whether the use of embedded content taken from social media sites by entertainment companies is an infringement of a copyright owner’s exclusive right to display content. “Embedding” refers to displaying web content indirectly by linking to another website where the content is hosted. In the case, Sinclair, a professional photographer, posted an image on her “public” social media account. In March 2016, Mashable reached out to Sinclair for a license to use the photograph with the intention to highlight her work in an article about women photographers. Sinclair denied the license, and later that month Mashable published the article and included the photograph as embedded content from Instagram.

Sinclair filed a copyright infringement lawsuit against Mashable alleging that Mashable failed to obtain a license to use the copyrighted photograph. Mashable moved to dismiss the action on the grounds that it had obtained a valid sublicense from Instagram, and therefore did not infringe on Sinclair’s copyright.

The court granted Mashable’s motion to dismiss, finding that there was no copyright infringement, and that Mashable had in fact been granted a valid sublicense from Instagram to use Sinclair’s photograph, which she had posted to Instagram as “public.”