Authors, beware! The next time you post your work on social media, you may lose significant ownership rights. A core principle of U.S. copyright law is that the author controls how their work is used, and can earn money from that use if they wish. But what happens when a photographer posts her work on Instagram and a large corporation uses it without compensating the photographer? This is exactly what happened to Stephanie Sinclair, a Pulitzer Prize-winning photojournalist, who has been published in National Geographic and the New York Times Magazine.

On September 22, 2015, Sinclair posted a photo to her Instagram account, where it was – and still remains – available to the public. Ziff Davis subsidiary Mashable offered Sinclair $50 for use of the image, which Sinclair declined. Mashable included the photograph anyway, by embedding the Instagram post in its article “10 female photojournalists with their lenses on social justice”. Sinclair sued for copyright infringement in the Southern District of New York.

When deciding online copyright infringement cases, courts have generally followed the holding of a 2007 9th Circuit case, Perfect 10 v.,Inc., that embedding a link to an image hosted on another Internet website (whether through framing or by showing thumbnails of the image) does not constitute “display” or “distribution” of the work, and therefore the website using this method is not liable for copyright infringement. However, in 2014, the U.S. Supreme Court held in American Broadcasting Cos., Inc. v. Aereo, Inc. “that liability should not hinge on invisible, technical processes imperceptible to the viewer…” The Southern District of New York made waves in 2018, when Judge Forrest followed Aereo’s holding in Goldman v. Breitbart, stating that, regardless of the technology used, the website displaying an image without permission “violated plaintiff’s exclusive display right.”

Flash forward to April 2020, with Judge Wood hearing Sinclair’s complaint for infringement in the Southern District of New York. Should the judge follow AereoPerfect 10, or Goldman? The answer was “none of the above”; in a short opinion issued just two weeks ago, Judge Wood instead relied on Instagram’s Terms of Use. According to the Terms, an author uploading content to Instagram “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]…” Further, Sinclair chose to make the photograph public, rather than private. “Thus, because Plaintiff uploaded the Photograph to Instagram and designated it as ‘public,’ she agreed to allow Mashable, as Instagram’s sublicensee, to embed the Photograph in its website.” Sinclair’s complaint for infringement was dismissed. Ziff Davis has removed the image from its current version of the article

This case serves as a stark reminder to authors: read the terms of use when uploading your work to social media. I recall a case from a few years ago, when a large European law firm sent my client a letter demanding that he pay a substantial amount for posting a photographer’s work without permission. Fortunately for my client, he had obtained the image from Flickr, which means that the author licensed the work to any Flickr user – for free! The fact that the author had later removed the photograph from Flickr didn’t change that fact. After I sent the law firm a couple of very direct letters, they left my client alone.

Authors, beware, indeed. Read the terms of use before you upload your work to social media!

–Joshua D. Waterston, Esq.