(Photo by Carl Court/Getty Images)
Those photographers and creatives who post their work on Instagram (read: all of them) were rightfully upset earlier this year when news of the decision in Sinclair v. Ziff Davis/Mashable.com hit the the webwaves. In that case, a Southern District of New York court ruled, in essence, that any art or photography that a creator posted to Instagram could be exploited by third parties that employed Instagram’s platform to repost the work on their own website. This conclusion resulted in the dismissal of Sinclair’s copyright case, which sought to address Mashable.com’s publication of Sinclair’s photograph entitled “Child, Bride, Mother/Child Marriage in Guatemala” after Sinclair had declined their request for a license. To be sure, it was a clear case of infringement that was dismissed on a questionable basis. And the court’s decision, which for the first time held that work posted on Instagram could be used by outside companies for their own purposes without consent, resulted in numerous creatives shuttering or limiting access to the Instagram accounts.
The initial Sinclair decision concluded that the prolix and contradictory Terms of Use to which one clicks agreement when first signing up for Instagram granted Instagram broad rights. And that those broad rights somehow allowed third parties to then exploit anything published to Instagram.
But, the court did not take into account the fact that Instagram would itself have to exercise its right to sublicense in order for third parties to exploit the works posted on Instagram. And it failed to acknowledge that elsewhere in the labyrinth of Instagram’s terms it is specifically stated that Instagram users own the rights to the work that they create and post and that third parties hoping to exploit the work must gain the creator’s consent to do so. All in all, the case was a tragedy for artists and creatives who showcased their work on the world’s largest online platform.
Luckily, though, a case with remarkably similar facts was pending in a courtroom right down the hall from the court that decided Sinclair. And that court respectfully but firmly rejected the key conclusion in Sinclair — that a creator’s posting a work to Instagram gave the rest of the world the unfettered ability to exploit that work without consent for commercial gain. (n.b., this author represents the artist in this case.)
In that case, McGucken v. Newsweek, the once-relevant but now disgraced publication had requested from McGucken a license to publish one of his striking photographs. When he declined to grant a license, Newsweek published his work anyways, alongside Newsweek advertising. When McGucken objected to this exploitation without consent, Newsweek, in an argument similar to that advanced in Sinclair, claimed via a tortuous and tortured reading of Instagram’s terms that it basically had the right to do whatever it wanted with McGucken’s work and that his feelings on the subject were irrelevant. Because, Instagram.
The court, though, rejected Newsweek’s baroque (and, some might say, broke) argument, noting that Instagram’s terms expressly state that “User Content is owned by users and not by Instagram” and that companies like Newsweek must “[c]omply with any requirements or restrictions imposed of usage of Instagram photos and videos … by their respective owners[.]” Of course, Newsweek presented no evidence that it complied with McGucken’s requirements or restrictions. To the contrary, the record reflected that Newsweek scoffed at McGucken’s restrictions and exploited his work notwithstanding his feelings.
And, crucially, the McGucken court adroitly recognized that while Instagram users may grant Instagram a license to use their work, there was a conspicuous lacuna when it came to evidence establishing that Instagram ever sublicensed McGucken’s work to Newsweek, as Newsweek claimed. The court acknowledged that while Instagram certainly had a bunch of terms, “none of them expressly grants a sublicense to those who embed publicly posted content.” As there was no evidence whatsoever in the record to establish that Instagram had authorized Newsweek to make any use of McGucken’s work, Newsweek’s argument that it could do as it pleased with McGucken’s work was rejected.
In the wake of the McGucken decision, the Sinclair court reconsidered its ruling and reinstated the artist’s case. And to put a bow on the matter, Instagram itself went public and stated without equivocation that the putative sublicenses of the type claimed by Newsweek are simply figments of imagination that do not, in fact, exist. So, at this point, all courts to consider the issue and Instagram itself has taken the position that third parties cannot exploit the work of creatives simply because the work was posted on Instagram.
Of course, the uniformity of these developments has not dissuaded Newsweek from pushing forward with its attack on artists’ rights. The company has returned to court demanding that it reconsider its ruling and instead conclude that Instagram, which has now publicly stated it does not provide sublicenses, provided Newsweek a sublicense to exploit McGucken’s work. So the saga, as it does, continues.
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.