The Future of Embedding is in Question After Mashable Settles Copyright Fight

Steven T. Lowe

On February 9, 2021, a settlement was reached by the parties in an important copyright case that has been closely followed since 2018 for its impact on the practice of “embedding.” Embedding entails integrating images, links, videos, or other digital media onto web pages. This common practice is made easy on social media platforms, such as Instagram and Twitter.

In the 2018 lawsuit, the complainant was a well-known photographer whose work has been published in The New York Times and National Geographic. She filed a copyright infringement lawsuit against Mashable, a pop culture site, for Mashable’s unauthorized use of one of her photographs embedded into an Instagram post. Mashable argued that Instagram’s terms of use gave the platform the right to relicense any content posted by users of the platform, as well as claiming that Instagram’s easy embed tools implicitly granted such a license. In effect, Mashable’s position was that once a photograph was posted on Instagram, it lost copyright protection under the Instagram Terms of Use.

In June 2020, a federal judge in the Southern District of New York ruled that Instagram’s vague user policy did not make it clear that sites such as Mashable were granted “explicit consent” to embed material posted by users. Rather than take this dispute to trial, the parties thereafter settled the case.

Counsel for the plaintiff, James H. Bartolomei, noted that he was pleased with the settlement as “he believes that because of this case, third party publishers generally no longer embed copyrighted photos or videos from Instagram without first obtaining permission or a license from the copyright holder.” Instagram weighed in on this issue by “rejecting the defense advanced by Mashable” and “asserting that publishers would need to seek permission to embed photos.” This is a victory for copyright owners.

Sinclair is represented by James. H. Bartolomei of Duncan Firm, P.A. and Bryan Daniel Hoben of Hoben Law.

Mashable is represented by Lacy Herman Koonce and James Eric Rosenfeld of Davis Wright Tremaine LLP.

The case is Sinclair v. Ziff Davis LLC, case number 1:18-cv-00790, in the U.S. District Court for the Southern District of New York.

* Lowe & Associates (“The Firm”) is an entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving copyright law, having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.

Find us at our website at www.LoweLaw.com