Do Instagram’s terms of service permit third parties to distribute photographs posted to users public account even when the user has expressly denied such permission? That was an issue addressed by Sinclair v. Ziff Davis, LLC and Mashable, Inc. back in April. The plaintiff, Stephanie Sinclair, was a professional photographer who owned the copyright to a photograph that she posted to her public Instagram account and which was titled “Child, Bride, Mother/Child Marriage in Guatemala.” Mashable, owned by Ziff Davis, tried to license the photograph for $50.00 for use in an article about female photographers. Sinclair rejected the offer but Mashable embedded the photograph in its article anyway and published it on its website. Sinclair demanded that Mashable take down the copy of the photograph from the article but Mashable refused. Sinclair sued for copyright infringement.
Pursuant to Instagram’s policies, users can use an API (application programming interface) to embed Instagram posts in their websites. The defendants, Ziff Davis and Mashable, argued that their use of the photograph was subject to a valid sublicense from Instagram. The presiding federal judge, Kimba Wood, agreed, finding that by creating an account, Sinclair agreed to Instagram’s Terms of Use and in doing so, “Plaintiff granted Instagram the right to sublicense the Photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph.”
The Terms of Use stated that the user “grant[s] to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content that you post on or through [Instagram], subject to [Instagram’s] Privacy Policy.”
Of course, nobody reads the Terms of Use, as readers of this blog are well aware, and the plaintiff raised a number of arguments relating to this and the difficulty of locating and comprehending the terms. The judge was unpersuaded. Until she wasn’t.
In a surprising turn of events, the same judge granted a motion to reconsider, stating that while the court stood by its holding that the plaintiff authorized Instagram to grant API users a sublicense to embed public content, it found that a license must convey a licensor’s “explicit consent” to use a copyrighted work, and there was “insufficient evidence that Instagram exercised its right to grant a sublicense to Mashable.” The Platform policy which allegedly granted the sublicense was “insufficiently clear to warrant dismissal.” The court referenced a case that had been decided earlier in June, McGucken v. Newsweek, LLC, which itself referenced the earlier Sinclair decision and Judge Wood’s opinion. McGucken found that there was “no evidence” of a sublicense agreement between Instagram and the defendants because although the terms governing the use of the API contemplated Instagram allowing a sublicense, they do not “expressly” grant a sublicense to those “who embed publicly posted consent” nor was there evidence of an implied sublicense. In light of this “persuasive authority,” and to “correct clear error,” Judge Wood granted the motion for reconsideration.
(Originally posted at Contracts Prof Blog)