Professional Photographer Gets Second Shot at Copyright Victory

On June 24, 2020, Judge Kimba M. Wood of the United States District Court for the Southern District of New York granted a rare motion for reconsideration regarding a professional photographer’s copyright infringement suit against the media website, Mashable.

Around two years ago, on January 29, 2018, Stephanie Sinclair, a professional photographer whose work has been featured in The New York Times, Time Magazine, and National Geographic, accused Mashable of copyright infringement when the company posted one of Sinclair’s photographs from her Instagram account in an article on its website.

On April 13, 2020, however, the Court held that Mashable had a valid sublicense from Instagram to use Sinclair’s photograph and lawfully did so through a technical process called “embedding.”

Instagram uses a service called “application programming interface” or “API” which enables users (such as Mashable) to access, share, and embed, onto other websites, content created by users with a “public” Instagram account. This is how Mashable—at first—got away with using Sinclair’s copyright protected photograph; the company embedded into its article a copy of Sinclair’s photograph she had previously uploaded to her public Instagram page.

By creating an Instagram account in the first place, Sinclair agreed to use Instagram’s Terms of Use which state that, “by posting content to Instagram, the user grants to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content that [the user] post[s] on or through Instagram.” Therefore, the Court previously decided that Sinclair explicitly granted Instagram the right to sublicense her photograph and display it elsewhere.

In its June 2020 order, however, the Court revised its holding to acknowledge that it did not give “full force” to the requirement that Instagram users (“licensors”) must give the platform “explicit consent” to license copyrighted work.

Judge Wood remarked, “The [Instagram] Platform Policy’s statement…could be interpreted to grant API users the right to use the API to embed the public content of other Instagram users. But, that is not the only interpretation to which that term is susceptible.”

Accordingly, the Court determined that Instagram’s terms are “insufficiently clear” to hold that Instagram properly granted Mashable a sublicense to embed Sinclair’s photograph on its website. The Court thus concluded that Sinclair’s copyright claim against Mashable could not be dismissed on the mere basis of Mashable’s sublicense defense at this stage of litigation.

Sinclair is represented by James H. Bartolomei of Duncan Firm PA 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.

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