In this era of social media and image sharing, it is not uncommon for account holders to make their profiles public in attempt to garner as many followers and as much attention as possible. Social media platforms can be a form of relatively low-cost personal and corporate advertising. However, as a photographer recently learned, using social media platforms can have unintended consequences that compromise intellectual property rights.
Stephanie Sinclair, a professional photographer who is the exclusive U.S. copyright owner of a photo titled “Child, Bride, Mother/Child Marriage in Guatemala,” posted a copy of her photograph on her website and public Instagram account. She agreed to Instagram’s standard terms and conditions when creating her Instagram account, but Sinclair asserts she did not intend to grant sublicenses by doing so. Yet, the United States District Court, Southern District of New York held in Sinclair v. Ziff Davis, LLC and Mashable, Inc. that Sinclair had in fact granted a valid sublicense that allowed Mashable—a global, multi-platform media and entertainment company—the right to use embedded images of her photographs.
Prior to the lawsuit, Mashable requested a license to Sinclair’s photo in exchange for $50.00. Sinclair declined the request. Mashable nonetheless published an article that “embedded” Sinclair’s photo. “Embedding” allows an image to be displayed on a website through coding, while the image is hosted on a third-party server. The embedding process that Instagram uses is an “application programming interface” (API). Through this API, Instagram users can access and share content posted by other Instagram users with public accounts, including by embedding the public content on the user’s separate website, which is what Mashable did with Sinclair’s photograph.