Photographer Loses Copyright Infringement Case Because She Posted The Photo On Instagram First

Digital media platform Mashable has won its lawsuit against a photographer who claimed the company stole her photo without his permission.

On Monday, a New York federal court ruled against #StephanieSinclair, a professional photographer well-known for her gender and human rights-geared work. The artist’s work has been seen in prestigious publications like The New York Times, National Geographic, and more.

Like most people, Sinclair posted one of her photos on her IG account; a picture of a mother and her child in Guatemala. Mashable saw the photo, reached out Sinclair, and offered her $50 to allow them to use the photo for a story on female photographers. Sinclair declined, but Mashable ended up using the image anyway, making sure to credit her by embedding her Instagram post in its story, according to The Hollywood Reporter. 

Though we’re used to hearing these cases rule in favor of the Plaintiff, back in 2018, another situation like this involved NFL player Tom Brady. An embedded photo of the quarterback was used in the case, and a different judge rejected a server test, and in turn, found the media outlet liable for the photo. A server test is a federal court’s response to a previous copyright infringement case, which declared it legal for someone to commit copyright infringement if the image is copy and pasted from a third party server -like Instagram-onto their site. If a person provides a link to the image that was initially posted to a third party, that person will not be at fault for copyright infringement. For example, if a news outlet uses a photo and displays it on its own server, the server test would categorize it as copyright infringement. But, if the outlet uses the image by embedding a link from a third party, it is cleared of any copyright infringement violations. ⠀⠀⠀⠀⠀⠀⠀⠀⠀⠀⠀⠀⠀⠀⠀

Because Sinclair posted the photo on Instagram initially, her argument of copyright infringement was denied because she technically released some of her rights to the social media platform.” Here, [Sinclair] granted Instagram the right to sublicense the photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the photograph,” said U.S. District Court Judge Kimba Wood. Sinclair came back, saying Mashable should still get a license from Sinclair directly. But the court’s ruling went on to reject Sinclair’s defense, saying Mashable was in the right to use the photo because once it is posted to Instagram, the picture is now subject to the application’s terms of use for photos. THR reports that IG is granted Terms of Use that include “a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content.”

Sinclair “argues that it is unfair for Instagram to force a professional photographer like [her] to choose between ‘remain[ing] in ‘private mode’ on one of the most popular public photo-sharing platforms in the world,’ and granting Instagram a right to sub-license her photographs to users like Mashable.” Still, in the judge’s decision, he said,” Unquestionably, Instagram’s dominance of photograph- and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that Plaintiff’s dilemma is a real one. But by posting the photograph to her public Instagram account, the Plaintiff made her choice. This court cannot release her from the agreement she made,” wrote the judge.

In response, Sinclair’s attorney said,” We believe no photographer knowingly contracted away their ownership rights in their photos when they choose to use Instagram. We remind everyone that this is only one single federal district court opinion and is not the binding law of the United States or even the Second Circuit Court of Appeals. Our client is considering an appeal.” Later adding,” She knows what it’s like to live in poverty and struggle, and it would be great for her to bring that experience to politics.”