We recently wrote about a case in the Southern District of New York against Mashable relating to the embedding of content from social media platforms like Instagram. In that case, the court held that Instagram’s terms of use (which were accepted by the plaintiff, a photographer, when he created an Instagram account) were insufficiently clear to allow Mashable to escape liability for publishing Instagram content through the process of embedding. Thereafter, the parties settled out of court. Legal watchers speculated that the ruling would encourage copyright infringement claims based on the embedding of content.
Embedding is the process of making a photo or other content appear on your website via a link to the content rather than reproducing the content. For example, Mashable published an article that displayed a photo embedded directly from Instagram. The photo was not hosted on Mashable’s own servers – it was on Instagram’s servers and accessed anew each time the article was loaded. Instagram makes it easy for media companies like Mashable and Buzzfeed to generate enormous amounts of content through the use of embedding by providing proprietary software to smooth the embedding process. In fact, an entire ecosystem of “listicles” has grown up around the blatant embedding of funny tweets and posts rather than generating original content.
Now, a recent class action case filed in the Northern District of California by two photojournalists accuses Instagram of directly profiting from the embedding process via secondary and contributory copyright infringement. The plaintiffs specifically allege that Instagram allowed media companies to embed their copyrighted photos of the George Floyd protests and the 2016 election without permission.
The plaintiffs claim that “Instagram has been caught red-handed in its scheme to usurp the value from copyrighted works for its own benefit.” Plaintiffs allege that Instagram encouraged the embedding of photos in order to drive up advertising revenue. “Instagram misled the public to believe that anyone was free to get on Instagram and embed copyrighted works from any Instagram account, like eating for free at a buffet table of photos, by virtue of simply using the Instagram embedding tool,” they claim.
Instagram and other social media companies, as well as the media companies taking advantage of the embedding tools, will certainly be watching closely to see if they are about to lose a major source of engagement and advertising exposure.
The case is Hunley et al. v. Instagram LLC, Case No. 3:21-cv-03778, U.S. District Court for the Northern District of California.