In a significant legal victory for Meta-owned Instagram, a three-judge panel with the 9th U.S. Circuit Court of Appeals ruled in favor of the social media giant in a copyright infringement case. The lawsuit, initiated in 2021, involved photographers accusing Instagram of allowing outside websites and publications to embed images without their explicit consent, violating their copyrights.
The case stemmed from instances in 2016 and 2020 when media outlets Time and Buzzfeed respectively embedded Instagram images without seeking permission from the content creators, photographers Matthew Brauer and Alexis Hunley. The photographers alleged that Instagram’s practice of enabling third-party embedding without obtaining licenses exposed them to secondary infringement charges.
Initially filed in California, the case was dismissed by a judge who reasoned that the news outlets merely displayed embedded content without storing or creating copies of the original images. The photographers appealed the decision, but the federal panel upheld the ruling, concurring with California’s stance that embedding does not involve making copies of the underlying content.
While the current ruling may allow third parties to embed photos and videos without the content creator’s explicit consent, the panel of judges acknowledged the “serious and well-argued” policy concerns raised by Brauer and Hunley regarding copyright holders’ control and financial benefits from their work.
In response to such concerns, Instagram introduced an option in 2021 that allows users to prevent their images from being embedded. This decision came after lobbying efforts by the American Society of Media Photographers (ASMP) and the National Press Photographers Association (NPPA).
The photographers may still have the option to petition for a rehearing with an 11-judge panel, as reported by Reuters. However, Brauer and Hunley have not yet confirmed if they will pursue this course of action.
The implications of this court decision extend beyond this case, as related cases with differing outcomes continue to arise, setting the stage for a potential higher-court showdown in the future. A New York judge previously issued a contradictory ruling in 2018 when a photographer sued various publications for embedding tweets featuring an original image of NFL legend Tom Brady. The judge sided with the photographer, emphasizing that the Copyright Act does not require possession of an image to display it, contrary to the argument made in the Instagram case.
