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Photo embedding cases depend on social media company decisions

Mark Sableman August 3, 2020

Things were so simple in the old days. What was said in the public square could be heard and repeated by anyone.

But today’s public square is social media. It is run by companies using sophisticated technology. It employs text and images, subject to copyright. And it is governed by contractual terms, written by the social media companies, and changeable at their will.

So your ability to repeat and republish from today’s public square depends on copyright law, social media technology and social media terms of service. Courts must figure out how the three work together.

That’s not an easy job, which may explain the recent back and forth on what may seem like a straightforward issue—can you legally republish images from a social media post, by using the application specially provided by the social media company for that purpose?

The current round began in April when Judge Kimba Wood of the federal district court for the Southern District of New York proclaimed a simple syllogism in Sinclair v. Ziff Davis: 1. Instagram contractually requires its users to grant Instagram the license to use the user’s content, and to sublicense it as well. 2. Instagram created an API (application programming interface), allowing others to copy Instagram posts and embed them elsewhere, for example, their own websites. 3. The defendant, which had used Instagram’s API to embed a user post, acted under a valid sublicense, so it didn’t infringe the original poster’s copyright.

That seemed pretty clear, and the decision was written up extensively, including in this blog. But then things got more interesting.

Initially, another jurist in the same district, Judge Katherine Polk Failla, ruled in McGucken v. Newsweek on the same issue in a very similar case. She agreed that Instagram had contractually obtained the ability to sublicense user content, but concluded there was no evidence that Instagram actually granted sublicenses to anyone. Essentially, she found Judge Wood’s syllogism flawed under the classic fallacy of the undistributed middle term, because the mere existence of the API did not prove that Instagram had granted sublicenses.

Then, Instagram, on its own, announced that it never intended to sublicense user content when others use Instagram’s API to embed content. “While our terms allow us to grant a sub-license, we do not grant one for our embeds API,” an official of Facebook, Instagram’s parent company, told Ars Technica.

Later, in light of Judge Failla’s ruling (and possibly with knowledge of Instagram’s announcement), Judge Wood reconsidered her ruling, and rescinded it. Technically, she concluded that at the early motion-to-dismiss stage of the case, there was insufficient evidence of a sublicense grant. The issue of whether Instagram granted the publisher such a license was left for discovery and a later decision.

These rulings are only part of the picture on the broader issues of use of social media content, and use of embedding and inline linking technologies. As a general rule, one may not use others’ photographs simply because they were posted on social media. Several cases distinguish thumbnails search engine use as a fair use, although one of those cases based a large part of its rationale on the technological nature of inline linking, in which the source code for the original image always resides on the original server. And now these two New York cases, and one other, are wrestling with the interplay between copyright law, Internet linking and embedding technologies, and social media contracts.

These cases tell us that copyright claims based on social media content will often depend a little, or maybe a lot, on the technologies used and the applicable terms of service—both, of course, under the control of the social media companies. It is yet another instance where the decisions of private social media companies significantly affect legal rulings.

Mark Sableman is a partner in Thompson Coburn’s Intellectual Property group.