Social Media Accounts Provide a New Twist in the Law Governing the Right To Use Photographs

Written By: David T. Azrin

person taking a picture on their phone

A recent New York federal court decision adds a new twist to the law governing the right to use photographs that are posted on social media platforms and gives a new possible legal defense to individuals and businesses accused of copyright infringement for using photographs that are directly sourced from those platforms.

Many people incorrectly assume that using photographs on the internet is allowed and that anybody can use the photo for any purpose including a commercial purpose. Generally speaking, this is not the case. As we described in a prior article on copyright issues, under copyright law, the person who took the photograph still owns the copyright, and the display of the photo by someone else for a commercial purpose without the owner’s permission may constitute copyright infringement, unless certain exceptions apply, such as where the copyright has expired because it is an older work; the photo was obtained from the site of an organization that makes photos available for public use such as Getty Images; or use of the photo is permitted under the limited doctrine of “fair use.” 

Applying these principles, courts have held that copyright infringement occurs when a photo is used for commercial purposes without the owner’s permission, even in cases where the business merely provided an embedded link to the owner’s website. These decisions favored the copyright owner. 

A recent federal court decision points out a new exception to this general rule.

In Sinclair v. Ziff Davis, LLC, a photographer sued a media company for embedding a link to a photo from her public Instagram account. The media company used an embedded link to the photo on its website without permission from the photographer, after the photographer had refused an offer by the media company to pay her $50 for a license.

Under prior legal precedent, the media company’s display of the photo would probably constitute copyright infringement. But in the Sinclair v. Ziff Davis, LLC case, federal District Court Judge Kimba Wood focused on the fact that, buried in Instagram’s lengthy Terms of Use, was a provision that says that users who post photos to their public account give Instagram the right to sublicense the photos. Instagram enables users to access and share content posted by other users whose accounts are set to “public” mode. As a result, the court held, when the photographer uploaded the photo to her public Instagram account, she had essentially given up the right to prevent third parties from embedding the photo on their website. The court dismissed the copyright infringement claim, explaining that a “user who initially uploaded the content has already granted Instagram the authority to sublicense the use of the ‘public’ content to users who share it.” 

The case adds another wrinkle to the law governing the use of photos obtained from the internet. Going forward, courts will more closely examine where the photo was originally published. If the terms of use of that site allowed sublicenses, then a third party who accesses the photo and shares it under the terms allowed by the site might be excused from a copyright infringement claim.

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