Sorry to begin your week with some bad news, but here goes…
Instagram recently issued a statement saying that you might need permission from Instagram users before embedding their photos.
If you fail to get permission, you could be subject to a copyright lawsuit.
Instagram User vs. Newsweek
Not too long ago, Newsweek reached out to an Instagram user asking for permission to use a photo on its website. The user said no.
Newsweek embedded the photo on its website instead.
According to Newsweek, there’s no copyright violation in that action because the company embedded the photo rather than taking a screenshot of it and uploading it.
That wasn’t good enough. The user filed a lawsuit.
Instagram Statement
Management at Instagram is watching the Newsweek case very carefully. It could carry ramifications not only for photo-sharing sites, but also other sites that allow embedded media.
Here’s what the company said in a statement about the copyright issue:
While our terms allow us to grant a sub-license, we do not grant one for our embeds API.
Our platform policies require third parties to have the necessary rights from applicable rights holders.
This includes ensuring they have a license to share this content, if a license is required by law.
In other words, just because you have the ability to embed Instagram photos on your site, that doesn’t mean your free and clear of copyright claims.
Case Precedent
This isn’t the first time a major media company found itself on the business end of a lawsuit over an Instagram embed. The same thing happened to Mashable.
Back in April, Mashable embedded an Instagram photo on its site. The Photographer who uploaded the image to Instagram filed suit.
Mashable won that case. The judge said that the photographer “granted Instagram the right to sublicense the photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the photograph.”
However, if you know anything about American jurisprudence then you know that all judges don’t share the same opinion about every aspect of the law. In fact, the judge handling the Newsweek case sees things differently.
That judge says there isn’t enough evidence to decide whether Instagram’s terms of service give webmasters the implicit right to embed photos.
And now that Instagram released the statement you saw above, the deck seems to be stacked against poor Newsweek.
What Should You Do If You Want to Embed Instagram Media on Your Site?
Now that you know there’s some question about embedding media on your site, what should you do?
First of all, pay attention. Follow the Newsweek case.
You might be following it for a while, though. This one has “Supreme Court” written all over it.
Also, you might want to consult an attorney. I’m in no position to dispense legal advice, especially on a case that doesn’t yet have a clear precedent.
Next, play it safe. It’s probably best to avoid Instagram embeds until you’ve got a green light that people who post photos on that app also give implicit permission for others to share them.
Finally, familiarize yourself with the Digital Millennium Copyright Act. Several provisions in that law deal with copyright issues.
Since you’re probably not an attorney, all you can do is get a high-level understanding of the main points in the law. That will help.
I think we’re on the verge of entering a lot of “grey area” territory here in terms of online copyright infringement. It’s good to familiarize yourself with the basics of the law so you’re prepared.
Wrapping It Up
Don’t assume that you have the legal right to embed media just because you’re technically capable of it. Some people might file copyright claims.
If you’ve got Instagram embedded images on your site, it might be a good idea to talk to an attorney. You may even need to pull them down.
