We previously wrote about a lawsuit filed in the Northern District of California against Instagram regarding the use of Instagram’s embedding tools. The plaintiffs, in that case, are two photojournalists who captured images of the George Floyd protests and the 2016 election and posted them to Instagram. Various media companies embedded the photos using Instagram’s proprietary embedding tools. The photos, therefore, appeared on websites without any license from the original photographers.
The photographers filed a class action claim against Instagram. The plaintiffs alleged 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 claimed.
In September, U.S. District Judge Charles R. Breyer has tossed the case, holding that the media companies are not liable for direct copyright infringement and that Instagram is not liable for secondary copyright infringement. The Court relied on the Ninth Circuit’s 2007 opinion in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). In Perfect 10, the court established a “server test” – websites do not legally “display” a copyrighted image if it is stored on its original website and merely embedded in search results.
Judge Breyer reasoned that the media companies’ websites functioned like Google in Perfect 10. Because the third-party sites are not storing the files on their actual servers, they were not liable for copyright infringement. Therefore, Instagram cannot be liable for secondary copyright infringement.
The photographers attempted to file an amended complaint and plead around the Court’s prior ruling. In February, the Court rejected the amended complaint on the same grounds. It appears that, in the Ninth Circuit, websites are free to embed photos without liability.
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.