A US Appeals Court has found Instagram not liable for copyright infringement for embedded photographs.
Two photographers filed a copyright infringement lawsuit against the social media giant after their photos appeared on BuzzFeed News and Time through Instagram’s embedding feature. The U.S. Court of Appeals for the Ninth Circuit has found that social media is not liable in situations like this because embedding content does not create a copy of copyrighted material.
Alexis Hunley and Matthew Brauer posted their photos to Instagram. In 2016, those photos appeared in an article on Time titled “These Photographers Are Covering the Presidential Campaign on Instagram.” One of Brauer’s photos was embedded in that article featuring Hillary Clinton. In June 2020, BuzzFeed News published an article titled, “17 Powerful Pictures of the Protests Through the Eyes of Black Photographers” featuring work created by Alexis Hunley documenting the Black Lives Matter protests.
Neither Time nor BuzzFeed News sought permission from Brauer or Hunley to license and use these photographs in their reporting for the respective events. Both Hunley and Brauer filed a class action lawsuit against Instagram for allowing image embedding without the original artists’ permission. The lawsuit accuses Instagram of “inducement of copyright infringement, contributory copyright infringement, and vicarious copyright infringement.”
Under the Copyright Act, an alleged infringer must have created a copy of a copyrighted work—but embeds are always served from Instagram’s servers. “[News outlets] do not violate Instagram users’ exclusive display rights. Because they do not store the images and videos, they do not ‘fix’ the copyrighted work in any ‘tangible medium of expression.’ Therefore, when they embed the images and videos, they do not display ‘copies’ of the copyrighted work,” the court’s ruling reads. Hunley appealed that ruling, but the Court of Appeals for the Ninth Circuit has upheld the ruling.
“By posting photographs to her public Instagram profile, Hunley stored a copy of those images on Instagram’s servers. By displaying Hunley’s images, Instagram did not directly infringe Hunley’s exclusive display right because Instagram had a nonexclusive sublicense to display these photos,” the Appeals court opinion reads.
“Because BuzzFeed and Time embedded—but did not store—the underlying copyrighted photographs, they are not guilty of direct infringement. Without direct infringement, Hunley cannot prevail on any theory of secondary liability.”