The 2016 copyright infringement case against the media website Mashable that we last heard about in April is back again. Following a similar case with an opposite ruling regarding how copyright infringement may pertain to embedded Instagram posts, the US District Court for the Southern District of New York has reopened the copyright suit filed by photographer Stephanie Sinclair against Mashable.

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Sinclair’s lawsuit is part of a copyright spat between the photographer and Mashable after the website embedded one of her Instagram posts in a 2016 article titled ’10 female photojournalists with their lenses on social justice.’ Mashable had first reached out to Sinclair and offered $50 to license the image, an offer that she rejected. As an apparent loophole to this matter, Mashable then simply embedded Sinclair’s public Instagram post featuring the same image.

A screenshot of the article in question. Sinclair’s Instagram photo has since been removed.

In her lawsuit, Sinclair had argued that Mashable did not have permission nor a license to use the image, while Mashable countered that it didn’t need the photographer’s permission because Instagram’s terms covered sublicensing. Instagram’s terms of service stated at the time that users:

…hereby grant to [Instagram] a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). You can end this license anytime by deleting your content or account.’

Based on its understanding of those terms, the court ruled against Sinclair, stating in April that, ‘Mashable was within its rights to seek a sublicense from Instagram when Mashable failed to obtain a license directly from Plaintiff…’

However, Instagram’s parent company Facebook introduced a plot twist earlier this month when it clarified in relation to a different but similar case against Newsweek that its terms do not cover sublicensing for embedded images. According to Facebook, and despite the fact that Instagram offers a ‘share’ function on public images by default, users must first get permission from the photographer before embedding their image.

This unexpected turn of events was a bittersweet moment, offering reassurance that Instagram users have more control over their images than previously thought, but with major implications for how future digital copyright cases are handled. Users who are unaware of the intricacies of Instagram’s terms could, for example, be liable for copyright infringement by simply using the feature made available to them by the platform.

Facebook’s statement has prompted the reopening of Sinclair’s copyright case, as the ruling in favor of Mashable was made with the understanding that Instagram’s terms covered sublicensing for embedded images. Sinclair filed a motion for reconsideration with the court in light of the new information, a request that has since been granted.

The case has been reopened because, according to presiding judge Kimba Wood, Mashable didn’t get ‘explicit consent’ from Instagram to embed the photo under its sublicensing terms. The lawsuit against Mashable can proceed, with Judge Wood stating in the court’s Opinion & Order that:

Revising its previous holding, the Court holds that the pleadings contain insufficient evidence to find that Instagram granted Mashable a sublicense to embed Plaintiff’s Photograph on its website … the Court did not give full force to the requirement that a license must convey the licensor’s “explicit consent” to use a copyrighted work.

The two new cases over Instagram embedding and how it pertains to copyright has renewed criticism of the platform for failing to give users more control over their content. Instagram automatically presents a sharing feature on all public Instagram posts, yet has made it clear that it doesn’t sublicense content shared with this feature, putting users at risk of liability.

Photographers are given the choice to make their images private, therefore removing the embed function, but with the consequence of reduced exposure to potential clients and customers. Enabling photographers to manually choose whether the sharing function is enabled on their public posts would remove this issue, but is not something Instagram presently offers.

In a statement to Ars Technica, Instagram had addressed this topic by stating that it was ‘considering the possibility’ of adding a new feature that would allow users to decide whether others can embed their public images. The non-committal nature of the statement, however, indicates that Instagram may never proceed to introduce such modification to this feature, putting the burden on photographers and users to sort out the copyright implications of using it.