A surprise lawsuit ruling means that Instagram copyright matters just got a whole lot more complicated.

The case was between Newsweek and a photographer whose work was displayed on Instagram, and the ruling contradicts an earlier one involving Mashable versus another photographer …

Arstechnica reports.

Photographer Elliot McGucken took a rare photo (perhaps this one) of an ephemeral lake in Death Valley. Ordinarily, Death Valley is bone dry, but occasionally a heavy rain will create a sizable body of water. Newsweek asked to license the image, but McGucken turned down their offer. So instead Newsweek embedded a post from McGucken’s Instagram feed containing the image.

McGucken sued for copyright infringement, arguing that he hadn’t given Newsweek permission to use the photo. Newsweek countered that it didn’t need McGucken’s permission because it could get rights indirectly via Instagram. Instagram’s terms of service require anyone uploading photos to provide a copyright license to Instagram—including the right to sublicense the same rights to other users. Newsweek argued that that license extends to users of Instagram’s embedding technology, like Newsweek.

Newsweek had reason to be optimistic about this argument because Mashable won a very similar case in April. The judge in the Mashable case ruled that photographer Stephanie Sinclair “granted Instagram the right to sublicense the photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the photograph.”

But in a surprise ruling on Monday, Judge Katherine Failla refused to dismiss McGucken’s lawsuit at a preliminary stage. She held that there wasn’t enough evidence in the record to decide whether Instagram’s terms of service provided a copyright license for embedded photos.

Newsweek had thought that it was on solid ground not just because of the Mashable ruling, but because it used the Instagram API to embed the photo – and it would therefore be covered by an Instagram sublicence. But Instagram has now said no: it only provides a technical mechanism to embed photos, and does not provide a sublicence. This means that even using the API, publishers would still need permission from the photographer to embed a photo.

To further complicate matters, the piece goes on to explains that earlier court cases in related matters have ruled that it is the server owner who distributes an embedded photo, not the website which includes the link. So an API ought to put Instagram on the hook, not Newsweek. 

It appears it may take an appeal to settle things for good, but in the meantime the consensus view seems to be that it is ridiculous for Instagram to provide an API without a sublicence to make it legal to use it.

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