On April 13, 2020, Judge Kimba Wood, of the U.S. District Court for the Southern District of New York, clarified what we knew to be true: Makers and creators should read social media sites’ Terms of Use and other posted conditions before publicly displaying works on those platforms. In her opinion and order in Sinclair v. Ziff Davis, LLC 18-cv-790 (SDNY), Judge Wood dismissed an infringement suit a photographer brought against a third-party news site that embedded a link to the photographer’s public Instagram page.

Photojournalist Stephanie Sinclair is well known for her photographs documenting human rights violations against women. She posted cropped versions of certain of her works to her public Instagram site in 2015. At some point in 2016, online news publication Mashable, in the course of writing an article on women photojournalists, approached Sinclair for a license to display one of her images alongside a reference to Sinclair’s work. Perhaps Mashable’s mistake was what could be assumed to be a fairly tone-deaf offer of $50 to this Pulitzer Prize-winning photographer for the use of the photograph as part of the article. Possibly insulted, Sinclair refused to grant a license to display her work. Mashable’s solution was to publish the article, and while it had photographs for most of the artists referenced, for Sinclair and another photographer, the publication embedded an image from her public Instagram page.  Whether an embed constitutes an infringement of the author’s display under Section 106 of the Copyright Act is an open issue since the work itself does not reside on the purported infringer’s server or site. Sinclair nonetheless sued.

Completely side-stepping the issue of whether embedding an image could be an infringement of the exclusive right to “display” a copyrighted work under Section 106 of the Copyright Act, in less than 10 pages, Judge Wood granted the defendant’s motion to dismiss, reminding users of the power of Terms of Use and other policies on social media sites. Mashable had a complete defense to infringement by virtue of Instagram’s Terms of Use and Privacy Policy, which explicitly granted Instagram an irrevocable license and any of its other Instagram users (such as Mashable) sublicenses to publicly displayed content.

The plain meaning of these straightforward license terms controlled. A copyright owner who licenses a work waives a right to assert an infringement claim against a licensee if the use complained of falls within the scope of the license. See Graham v. James, 144 F. 3d 229, 236 (2d Cir. 1998). Moreover, a copyright owner who permits a licensee to grant sublicenses cannot bring an infringement suit against the sublicensee, provided that the licensee and sublicensee act within the scope of their respective license and sublicense. United States Naval Inst. v. Charter Commc’ns Inc., 936 F. 2d 692, 695 (2d Cir. 1991).

For makers and creators, the case is illustrative of the need to analyze the terms and conditions of any social media site used if issues of unauthorized display and distribution are of concern. As the court found, if Sinclair wished to avoid a sublicense, she could easily have made her Instagram page private, and indeed, her page is now private. https://www.instagram.com/stephsinclairpix/?hl=en. She could also have publicly displayed her photographs in other venues online, such as her own website, without risk of inadvertently granting permission to third parties.

By the way, the article at the heart of the case is still online, https://mashable.com/2016/03/19/female-photojournalists-social-justice/. Under reference to Sinclair’s work, instead of a link to the embedded content on Instagram, there is a link to the website for the nonprofit Sinclair founded, Too Young To Wed. https://tooyoungtowed.salsalabs.org/donate-nowcopy1/index.html