A recent case in the Southern District of New York calls into serious question the ubiquitous practice of embedding photographs on a content creator’s website.
An embedded photo is one that is not hosted on the website’s own server, but instead is linked to a third-party server like a social media site. Instead of the photo being permanently available on the website, the website pulls the photo from the third-party site live when the website is accessed by a user. Platforms like Twitter, Instagram, and TikTok make it extremely easy for websites to embed user posts, and provide website designers with tools specifically meant to make embedding seamless for the user.
In a recent case (Sinclair v. Ziff Davis, LLC, 1:18-cv-00790, S.D.N.Y.), a professional photographer posted a photo to Instagram that was later embedded by Mashable in an article on its website. In its original ruling, the court held that Instagram’s terms of service (which every user, including Sinclair, accepts when signing up) permitted the embedding on links on third party websites. The court ruled that Instagram had the right to relicense Sinclair’s image to Mashable, and granted Mashable a dismissal of Sinclair’s claims.
However, in rare reversal of its prior order, the court instead held that Instagram’s terms were not sufficiently clear to allow Mashable to escape liability. While Instagram’s terms did give Instagram the right to use Sinclair’s photograph, the terms were ambiguous regarding the right of third parties to embed content on their own websites. The court reversed the dismissal in favor of Mashable, and allowed the case to proceed.
Thereafter, on February 10, the court dismissed the case in full after the parties agreed to an out-of-court settlement. The terms of the settlement were confidential, but Sinclair’s attorney said that other websites should take notice – “She believes that because of this case, third party publishers generally no longer embed copyrighted photos or videos from Instagram without first obtaining permission or a license from the copyright holder,” said James H. Bartolomei.
While this case did not result in a judgment against Mashable, content websites are surely taking notice. Creators need to be very careful to clarify their relationships with social media sites and other sources of embedded content to be confident that they will not face liability for embedded posts.