From The Field

April 23, 2020

In a concise, well-reasoned decision published on April 13, 2020, Judge Kimba Wood of the Southern District of New York dismissed a photographer’s claim that digital media website Mashable infringed her copyright by embedding her Instagram post on its website.  See Sinclair v. Ziff Davis LLC,  18-cv-790 (KHM) (SDNY).

For copyright practitioners with a background in new media law, the decision comes as no surprise. Without going into the details of the Instagram Terms, when Sinclair posted her photo, she gave Instagram the right to allow others to post the photo to the web using Instagram’s built-in embed tool.   To reach the holding, Judge Wood disposed of seven different arguments mustered by plaintiff Stephanie Sinclair.  The only argument worth noting is the last, a policy argument that deserves everyone’s attention.

Sinclair argued that it is “unfair for Instagram to force a professional photographer … to choose between remaining in private mode on one of the most popular public photo sharing platforms in the world and granting Instagram a right to sub-license her photographs to users like Mashable.” Although Judge Wood acknowledged Sinclair’s dilemma given “Instagram’s dominance of photograph- and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users,” she refused to let that dilemma override the clear (albeit somewhat labyrinthine for a non-lawyer) terms of the license.

While perhaps not a good argument in court, Sinclair’s plaint raises the question: Can and, if so, should Congress do anything to curb the unchecked power of social media giants like Instagram to dictate the scope of their licensing schemes given that they have become indispensable tools for creative (and other) professionals?

Author: David Steiner