A class action lawsuit has been filed in federal court in San Francisco targeting Instagram’s embed publishing tool. It is alleged that Instagram and its parent company enabled Facebook to copyright infringement by encouraging online publications to embed links to Instagram posts in articles.
A report by Reuters in the complaint alleges that Instagram’s embedding tool enabled publishers to display copyrighted images without seeking artist permission or paying a royalty. The class action lawsuit could involve “many thousands” of photographers claiming that Instagram “encouraged online publishers” to embed links to Instagram to drive traffic – and advertising revenue – to the site.
The basis of the filing is licensing, and the photographers claim that recent Instagram and Facebook approvals prove that the online publishers who used Instagram direct embeds were not entitled to what they may have been led to believe.
While Instagram’s Terms of Service state that the website has the right to license third party parts to embed posts from Instagram users, Instagram later admitted that it had no sub-license agreement with any publisher.
“While our terms allow us to sublicense, we don’t grant any for our embed API,” a Facebook spokesman told Ars Technica last year. “Our platform guidelines require that third parties have the necessary rights from the respective rights holders. This includes ensuring that you have a license to share this content if a license is required by law. “
This recording took place in the context of McGucken v. Newsweek, where photographer Elliot McGucken claimed the publication used his photo via an Instagram embed without his consent. A U.S. district judge ruled that despite the allegation of the publication, Instagram did not have a sub-license agreement with Newsweek.
This decision led to a reworking of an earlier and similar case with Mashable that had previously ruled in favor of publication.
Armed with this evidence, the class action lawsuit argues that Instagram and Facebook purposely left online publishers confused about whether or not they had a sublicense agreement, thus allowing the social media company, as Reuters writes, to “take advantage of the Widespread violations of the embedding tool, however, avoid liability for copyright claims by pretending to be “agnostic” and “neutral” as a technology platform of a service provider. “
The photographers want an injunction where Instagram must prevent or limit copyright infringement. The company would presumably do this by making it very difficult for online publishers to embed Instagram posts with copyrighted images without a photographer’s consent.
Photo credit: Header photo illustration based on a photo by Lance Matthew Pahang, CC0