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April 20, 2020

Instagram Users, Beware: Social Media Copyright Peril

In this Branding, Trademarks & Copyrights Bulletin, we look at how Instagram users may unwittingly relinquish valuable copyright rights using the example of the circumstances under which US District Judge Kimba Wood for the Southern District of New York dismissed plaintiff Stephanie Sinclair’s complaint against Mashable Inc. in Sinclair v. Ziff Davis, LLC and Mashable, Inc.

Instagram Overview

Instagram is a free photo- and video-sharing application available for download to various mobile devices. When setting up a personal account with Instagram, the program’s default rule makes personal accounts “public.” A public personal account on Instagram means that, among other things, material uploaded to the account is visible to anyone. In contrast, a private account means that only approved followers of the account are able to view that account holder’s content. Account holders must take proactive steps to convert their Instagram account from personal to private within their account settings. Business accounts, however, can only be used under the public setting.

For innumerable reasons, including fostering personal brand development, Instagram personal account holders may desire to maintain their Instagram accounts at the default public setting. There is also, likely, an appreciable number of Instagram personal account holders unaware that the default rule sets their account to a “public” visibility status. Whatever the reason may be, maintaining a public personal account comes with considerable peril—at least in the copyright realm to public personal account holders, as experienced firsthand by Sinclair.

The Sinclair Case

On April 13, 2020, Judge Wood issued an opinion and order in Sinclair v. Ziff Davis, LLC and Mashable, Inc., dismissing plaintiff Sinclair’s second amended complaint.

The factual background of this case involves Sinclair, a professional photographer, who maintains a publicly visible website featuring her photographic work. At the time the action was commenced, Sinclair also maintained a public personal account on Instagram.

In March 2016, defendant Mashable contacted Sinclair for permission to use a certain photograph (visible on Ms. Sinclair’s website and in a post to her Instagram account) in exchange for $50. Sinclair declined Mashable’s offer. Five days later, Mashable published an article that incorporated the photograph Sinclair previously declined to license to Mashable. Mashable incorporated Sinclair’s photograph by embedding the HTML code of her Instagram post into Mashable’s website. Through its application programming interface (API), Instagram enables users to perform this technique with respect to the posts of public personal account holders, allowing viewers to see the posted content on various websites even though the content is stored on Instagram’s servers.

In January 2018, Sinclair demanded Mashable take down the photograph or compensate her. Mashable declined to do either, which led Sinclair to file suit. After multiple amended complaints, Mashable moved to dismiss the action.

The court reviewed the Instagram terms of use Ms. Sinclair agreed to, which provide, in part, that the user “grant[s] to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content that you post on or through [Instagram], subject to [Instagram’s] Privacy Policy.” Content uploaded to Instagram and designated as “public” is subject to the above-described license grant.

In a single breath, the court acknowledged Sinclair’s legitimate dilemma of exploiting Instagram’s platform in a “public” manner in exchange for handing over valuable copyright rights only to dispose of that dilemma with the standpoint that Sinclair made her choice. The court found that Mashable’s use of Sinclair’s photograph via Instagram’s API was consistent with the sub-licensing rights she agreed to in making her Instagram account public.

In the end, Sinclair’s public posting of the photograph resulted in her valued copyrights being permissibly used for zero dollars in compensation to her; far less than Mashable’s $50 offer that she previously declined. It should come as no surprise that Sinclair’s Instagram account is now maintained as a private personal account with the disclaimer “account is private to block embedding of my images.”

Acceptance of Electronic Terms

Today, when new users provide their telephone number, email, full name, and select a username and password to create an Instagram account, the registration page includes a statement from Instagram that says, “[B]y signing up, you agree to our Terms, Data Policy, and Cookies Policy.” “Terms” “data policy,” and “cookies policy” are clickable terms that, if clicked, redirect users to the relevant policy. In its current form, the registration process does not require users to click to confirm acceptance of the relevant terms and policies.

Companies typically present electronic terms through one of four methods:

  1. Browsewrap: Terms are displayed on screens and are often only accessible by clicking links located at the bottom of the screens
  2. Sign-in wrap: Terms are presented at a sign-in screen displaying a link to the terms and a notice that, by signing in, the user agrees to the terms
  3. Clickwrap: Terms are displayed on screens, usually in truncated form, adjacent to a checkbox or “I agree” button. To proceed with a transaction, the user must click the checkbox or button.
  4. Scrollwrap: Terms are presented the same as clickwrap terms with the addition of a scroll or swipe requirement. The user is required to scroll through different sections of the terms. The user is also required to click an “I agree” button at each section or at least at the bottom of the terms.

In evaluating the enforceability of terms presented in electronic mediums, courts tend to focus on whether the consumer received notice that the consumer was agreeing to the terms. In some cases, courts have found browsewrap and sign-in wrap terms unenforceable because of their passive nature. For example, courts have found that requiring consumers to scroll to the bottom of screens to find linked terms is insufficient notice of agreement. On the other hand, courts generally uphold clickwrap terms as being enforceable because they require the user to perform an active step to confirm the agreement. Presently, courts are most likely to enforce scrollwrap terms because they require the user to perform multiple active steps to confirm the user has both reviewed and agreed to the terms.

In the Sinclair case, Instagram presented browsewrap terms to Sinclair. The court’s opinion did not delve into the enforceability and validity of Instagram’s browsewrap terms. We gather this is because Sinclair conceded she was bound by the relevant Instagram terms. Without such concession, Sinclair could have challenged the enforceability of the terms on the basis that Instagram provided insufficient notice of the terms.

It will be interesting to see whether the decision is appealed to the Second Circuit and, if so, whether business and photography organizations and associations will weigh in, as this ruling could have far-ranging ramifications for artists and photographers that have unintentionally exposed their works to the public domain.

Conclusion

Most social media platforms provide the platform owners with broad license rights to the content posted by users. Freelancers and businesses should carefully review the platform terms before posting their valuable intellectual property. Like many social media platforms, Instagram regularly updates and modifies its platform terms. Indeed, it is possible that the web of Instagram terms that entangled Sinclair is not the current form of Instagram’s terms. Nonetheless, Sinclair’s experience is a cautionary tale and a reminder to all current and prospective users of Instagram and other social media platforms to proceed with care.

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