The U.S. District Court for the Southern District of New York has reopened the controversial copyright infringement lawsuit filed by photographer Stephanie Sinclair against the publication Mashable, which embedded one of her images through Instagram after she denied the publication’s request to license the photo for an article.
To recap, Mashable offered Sinclair $50 to license one of her images of a Guatemalan mother and child for a 2016 article titled “10 female photojournalists with their lenses on social justice.” When Sinclair refused, Mashable used the image anyway, opting to embed the photo from Instagram.
Sinclair subsequently sued Mashable [Sinclair v. Ziff Davis, 18-CV-790 (KMW) (SDNY, Apr. 13, 2020)] for copyright infringement but the case was thrown out this past April when the court ruled that Instagram’s Platform Policy allows the company to grant anyone a sub-license to use the work as long as it’s live and public on the Instagram website.
Earlier this month, though, that ruling was contradicted by Instagram itself when during another case [McGucken v. Newsweek], the social media platform stated that “While our terms allow us to grant a sub-license, we do not grant one for our embeds API.” This statement led Sinclair to file a motion for reconsideration with the U.S. District Court for the Southern District of New York, and Judge Kimba Wood granted Sinclair’s motion, writing that “pleadings contain insufficient evidence to find that Instagram granted Mashable a sub-license to embed Plaintiff’s photograph on its website.”
In other words, Instagram didn’t give Mashable explicit consent to use the photo under that sub-license, so Mashable can’t use IG’s Platform Policy as a legal defense against Sinclair’s copyright infringement claim. Stay tuned for what happens next for Sinclair and what it will mean moving forward for photographers who post on the platform (Instagram is now reportedly considering allowing users to disable embedding on a per-photo basis).