Copyright law has never been a simple thing, but in the pre-digital era, it was often easier to determine who owns what. In the days of darkrooms and contact sheets, photographers were able to develop negatives, make prints and track the physical movements of their work.
However, thanks to digital copies, social media and the “sharing” of content, it can often be difficult for some people to figure out what is and what is not a fair use of something, let alone who has the rights to do what with a photo, a graphic or a piece of video.
Things got more complicated in some ways this week, thanks to a court ruling on the use of embedded content: (h/t Kelli Bloomquist for the head’s up on this)
A court ruled yesterday that Mashable can embed a professional photographer’s photo without breaking copyright law, thanks to Instagram’s terms of service. The New York district court determined that Stephanie Sinclair offered a “valid sublicense” to use the photograph when she posted it publicly on Instagram.
The case stems from a 2016 Mashable post on female photographers, which included Sinclair and embedded an image from her Instagram feed. Mashable had previously failed to license the image directly, and Sinclair sued parent company Ziff Davis for using Instagram embedding as a workaround.
A large part of this ruling came down to the user agreement associated with Instagram:
“Here, [Sinclair] granted Instagram the right to sublicense the Photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph,” rules Wood.
Wood comes to this conclusion by discussing how Sinclair agreed to Instagram’s Terms of Use when creating her account. Those terms granted to Instagram “a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content.”
Wood writes that because Sinclair “uploaded the Photograph to Instagram and designated it as ‘public,’ she agreed to allow Mashable, as Instagram’s sublicensee, to embed the Photograph in its website.”
In other words, you agreed to let us do certain things with your stuff, so you can’t complain when we do it. Sinclair argued that it’s an unfair choice photographers must make: They either give up some rights to their work or avoid being on one of the most dominant visual-sharing platforms.
The degree to which this will be the start of something bigger remains to be seen, but it does add yet one more wrinkle to the question of who owns what and how much trouble you can get in by engaging in which online activities.