According to the complaint, such activities constitute the induction of copyright infringement, indirect copyright infringement and vicarious copyright infringement, whereby Instagram is held liable for “damage to any copyrighted work infringed by any third party embedder”. The plaintiffs are demanding damages, siphoning off profits from embeddings, injunctive relief and legal fees on behalf of “potentially many thousands” of Instagram users.
That lawsuit becomes another in a recent spate of cases seeking to reconcile the ever-evolving social media landscape with the established parameters of copyright law. The complex and at times inconsistent copyright handling of social media embeds is largely due to the cumbersome way in which embeds supposedly reproduce the underlying work. Unlike simpler instances of copyright infringement, such as copying and pasting an image, social media embeds instead redirect users to the platform where the underlying image is stored. The courts are divided on whether this constitutes a copyright infringement within the meaning of the applicable copyright laws.
While such earlier cases in the past were directed against third-party embedders, the plaintiffs here sued the social media platform directly, shifting the focus from embedding to the existence of the function itself.
While this case is still in its early stages, it can signal significant changes in the social media legal landscape. As courts continue to wrestle with social media embeds and their relationship to copyright, companies should exercise caution with social media embeds and be reminded that the ability to embed is not a blanket license to the underlying work. Businesses should ensure that they have appropriate permits to use such works, including obtaining consent or a license to use an image for commercial purposes.