(Photo by Carl Court/Getty Images)
The low thrum that ran through creative corridors in Brooklyn, Austin, Portland, and beyond last month was the sound of scores of photographers and other creators smashing the switch that converted their Instagram accounts to the once-shunned “private” mode.
This mass action was the begrudging result of a court decision emanating from the Southern District of New York. This decision, Sinclair v. Ziff Davis, LLC; Mashable, Inc., held that Instagram, though a series of convoluted and poorly worded, online-only agreements, had the right to exploit its users’ content in any way it saw fit. Worse, as found by the court, these agreements automatically granted a sub-license to exploit Instagram users’ content to just about anybody on the internet. In other words, the entire world.
Stephanie Sinclair, the plaintiff in the case, was an award-winning photographer known for tackling gender issues who created a resonant work addressing child marriage in Guatemala. The defendant was Mashable, a website for which Ziff Davis seems to have paid a mere 50 million bucks back in 2017 before abruptly relieving it of a chunk of its staff. The site has since published a lot of reposted material and clickbait, including an “article” that incorporated one of Sinclair’s works from Guatemala. A Mashable writer reached out to Sinclair to seek consent to do so, but Sinclair declined. Mashable, though, ignored her wishes and forged ahead with publishing her work, in apparent violation of her copyrights.
The court, for its part, found Mashable’s publication without consent to be proper on the basis that Sinclair had posted the work on Instagram at some point. It concluded, in essence, that if one posts a photograph to Instagram, then any other user of Instagram can later publish that work anywhere and in any context it wants, so long as it “embeds” the photograph with the Instagram frame. Per the decision, this third-party user can add your original work to a clickbait website in a thicket of banner and pop-up ads or to a softcore hate or pornography site. Your right to control your work, per this decision, goes up in smoke once you post your work on Instagram.
Sinclair, of course, represents a single nonbinding district court decision, and one that conflicts with Agence France Presse v. Morel, the long-standing precedent that rejected the same “social-media sub-license for the entire internet” defense that was favored in Sinclair. Morel analyzed Twitter’s online terms, which “grant[ed] [Twitter] a worldwide, non-exclusive, royalty-free license (with the right to sublicense),” and correctly found that the sub-license did not extend to everyone on the internet that happened to log on to Twitter. Morel’s analysis is not distinguished or addressed in any way in Sinclair.
The Sinclair analysis is further flawed for a quartet of compelling reasons.
First, there is a question as to whether Instagram’s “browsewrap” license even bound Sinclair. The various pages of sloppily interwoven legal terms that a user putatively agrees to when signing up for Instagram are located on discrete pages that are only accessible by exiting the sign-up page via link. And there is no requirement that the user visit that page, let alone read the terms, before using Instagram. The Second Circuit has previously held, in Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 32 (2d Cir. 2002), that “where consumers are urged to [take certain action] at the immediate click of a button, a reference to the existence of license terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms.” That would seem to apply here, in which case Sinclair would not be bound to Instagram’s confusing and onerous terms, including the license, in the first place.
Second, the Sinclair court collapses and conflates Instagram’s Platform Policy with Instagram’s Terms. The latter arguably applies to users of Instagram like Sinclair and are referenced on the user sign-up screen. The Platform Policy is not referenced on the user sign-up screen and is intended not for general users of the site who post photographs, like Sinclair, but for third-party developers, app companies, and publishers who want to exploit Instagram’s API to republish Instagram content on third-party apps and sites. And, crucially, much of the third-party sub-license language relied upon by the Sinclair court to divest Sinclair of her rights resides in the Platform Policy.
This is troubling because Sinclair, like most photographers, did not appear to use Instagram’s API. And the very first line of the Platform Policy makes clear whom it binds: “By using the Instagram Platform, you agree to this policy.” And the “Platform” is defined not as the Instagram site but as “a set of APIs, SDKs, plugins, code,” and other technology through which data can travel between Instagram and third-party apps and sites. The Platform Policy has nothing to do with a photographer who simply uploads photographs to Instagram, yet it was used to force Sinclair into an unwanted sub-license.
Third, in order to qualify for the Instagram sub-license under the Platform Policy, the third-party user (Mashable here) is required by various provisions of the Instagram agreements to “compl[y] with owners’ requirements or restrictions.” And companies like Mashable are admonished not to “use the Instagram Platform to simply display User Content[.]” Mashable failed to meet these and other conditions in Instagram’s terms, yet the Sinclair court still allowed it to qualify for a sub-license.
Finally, and crucially, assuming that Sinclair was bound by Instagram’s terms, and setting aside that Sinclair was not using Instagram’s API, and excusing Mashable’s failure to abide by the Platform Policy’s conditions, there was no evidence in the Sinclair record that Instagram ever exercised its right to sub-license Sinclair’s photograph to Mashable.
A sub-license right, like most contractual rights, need to be exercised, particularly when they supposedly benefit a third-party. The Sinclair court found that “Instagram validly exercised [its sublicense] right by granting Mashable a sublicense to display the Photograph.” This circular analysis completely elides the step of “how” Instagram exercised this right, as there is no citation to the Instagram agreements or identification of any actions taken by Instagram. And this elision undermines the entire analysis because Instagram’s Platform Policy states that users of its API “don’t have any authority to assume or create any obligation for or on behalf of Instagram, express or implied, and [third parties] must not attempt to bind Instagram to any contract.” Instagram took no action to sub-license Sinclair’s work to Mashable. Instead, Mashable in effect bound Instagram to a sub-license with Mashable. The court’s conclusion that there was a valid sub-license violated contract law, copyright law, and Instagram’s express terms.
There are other irksome issues in Sinclair, including that it was decided at the motion to dismiss stage on a spotty record, and, as the court notes, the Instagram terms it applied may not even have been the same terms in effect when Sinclair “agreed” to them by signing up for Instagram, but for now it stands as the most recent case to test just how onerous are the terms of use for social media platforms. This case, or one like it, will eventually wind its way up to the appellate courts, where we will get further elucidation. For the time being, though, it may be in the best interests of creative professionals who use Instagram to go private or go home.
Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.