Instagram Wins Photo Embed Case vs. Media Photographers
In a ruling with repercussions for embedded content on sports media and team websites, the U.S. Court of Appeals for the Ninth Circuit on Monday sided with Instagram over two photographers who accused the company of copyright infringement for allowing websites to embed their posted photos.
The ruling comes as courts have reached conflicting decisions about this topic, with the U.S. Supreme Court arguably needed to resolve underlying issues.
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Like other Instagram users with public profiles, Alexis Hunley and Matthew Scott Brauer granted Instagram a royalty-free sublicense to display photos they post. Although Instagram does not grant third parties a license to users’ works, its technology permits third parties to embed public posts.
During the Black Lives Matter protests of 2020, BuzzFeed embedded Hunley’s post containing her copyrighted image of a protester. BuzzFeed didn’t seek authorization or a license from either Hunley, who works freelance, or Instagram. Similarly, Time embedded Brauer’s Instagram post from 2016 showing his copyrighted photo of presidential candidate and former U.S. Secretary of State Hillary Clinton. The publication did not seek his or Instagram’s permission.
Two years ago, Hunley and Brauer sued Instagram. They want their case to become certified as a class action on behalf of copyright owners whose work is “caused to be displayed via Instagram’s embedding tool on a third-party website without the copyright owner’s consent.”
The photographers argue Instagram’s embedding tool violates the Copyright Act by making it possible for third party websites to display copyrighted photos. Under the federal Copyright Act, infringement generally involves (among other features) displaying a copy of a copyrighted work without permission.
In dismissing the photographers’ lawsuit last year, U.S. District Judge Charles Breyer (a younger brother of retired SCOTUS Justice Stephen Breyer) stressed that neither BuzzFeed nor Time displayed a copy of the images nor stored them. Those publications only embedded Instagram posts.
Breyer relied on applicable Ninth Circuit precedent in Perfect 10 v. Amazon (2007). That case involved copyright protection for thumbnail images found via Amazon and Google searches. The Ninth Circuit adopted what has become known as the Server Test: Since there was no copy of a full photographic image fixed or stored on computers, there was no infringement; only reduced, lower-resolution versions—i.e., thumbnails—were stored.
Breyer found Perfect 10 on-point since BuzzFeed and Time did not store images. And since neither BuzzFeed nor Time infringed, Instagram could not be held secondarily liable for infringement.
Hunley and Brauer appealed, arguing Breyer’s ruling allows websites to circumvent copyright protections crucial to photographers and other professionals who rely on licensing to earn a living. But writing for a three-judge panel, Judge Jay Bybee affirmed Breyer’s ruling.
The core reason: BuzzFeed and Time didn’t “display a copy,” as that term is understood by the Server Test, since neither publication stored a copy. BuzzFeed and Time only directed an Internet browser to “retrieve and display content” from Instagram’s server, and Instagram can delete or replace those images.
The ruling is a positive development for social media platforms and websites that rely on embedding to generate content and accompanying revenue. Conversely, it’s a setback for photographers who promote their work on social media for professional reasons and who run the risk of media embedding their posts without their permission and without paying them.
But Hunley v. Instagram is not necessarily over.
As Bybee noted, Hunley and Brauer can petition the Ninth Circuit for a rehearing en banc. If granted, that hearing would take place before 11 Ninth Circuit judges. If that decision went against the photographers, they could petition the Supreme Court.
While the Supreme Court only agrees to hear about 1% or 2% of petitions, Hunley v. Instagram has certain qualities that might attract the justices’ interest.
Most important, the underlying legal question of whether embedding can infringe has yielded conflicting judicial opinions. The Supreme Court might reason it must step in to clarify what the law ought to be and prevent conflicting outcomes based on where a case is tried.
Last year, in McGucken v. Newsweek, Judge Katherine Polk Failla of the Southern District of New York rejected the Server Test in a case involving Newsweek’s embedding of a user’s Instagram post. She found the test unpersuasive since “the Copyright Act makes clear … that to ‘show a copy’ is to display it” and because when the Act became law in 1976 “Congress did not ‘intend to freeze the scope of copyrightable technology’ to then-existing methods of expression.”
Hunley v. Instagram has also attracted the interest of heavy hitters in technology and other impacted industries. Google, Twitter, Pinterest, Wikimedia Foundation, National Press Photographers Association, National Press Photographers Association, the American Library Association, the Electronic Frontier Foundation and other influential entities submitted amicus briefs to the Ninth Circuit supporting one side or the other. The Supreme Court might be more likely to hear the dispute given the scope and influence of companies weighing in.
