Current Copyright Litigation Involving Embedded Media

Issue May/June 2021 June 2021 By Andrew T. Warren
Complex Commercial Litigation Section Review
Article Picture
Andrew T. Warren

Several copyright cases involving embedded social media posts are being litigated into 2021. The topic remains unsettled law, but a pair of cases in the Southern District of New York may lead to increased clarity on the issue.

Embedding is a process in which a website, such as Instagram, provides for users to display a photo from that site elsewhere, such as on a personal or business website. Instagram uses an application programming interface, known as API, to give users this ability. The photo remains on the original server, so a technical copy is not made, but it is shared or displayed elsewhere. Two recent cases in the Southern District of New York highlight the legal issues that can emerge when one embeds the media of another.

Stephanie Sinclair, a professional photographer, brought suit against Mashable and its parent company, Ziff Davis LLC, for copyright infringement. Mashable sought to license a photo the plaintiff posted on her Instagram account for $50, but the offer was rejected. Mashable nevertheless proceeded to embed the photo into an article about female photographers. Sinclair filed suit and Mashable moved to dismiss the complaint, claiming it had a valid sublicense through Instagram. In April 2020, the court found that Instagram’s Terms of Use granted Mashable the right to sublicense the photograph and dismissed the suit.1

In June 2020, the Southern District of New York reflected on the Sinclair ruling in Elliot McGucken v. Newsweek LLC.2 The facts in McGucken were similar to those in Sinclair. A photographer posted a photograph of a lake on Instagram. Newsweek embedded that photo in an article about the lake without the copyright owner’s consent. Newsweek claimed it had a valid sublicense through Instagram’s Terms of Use. It also claimed the embedding of the image was fair use as an affirmative defense under the Copyright Act. Newsweek, like Mashable, moved to dismiss.

In McGucken, the court recognized the dismissal in Sinclair, but allowed that Instagram’s Terms of Use could be interpreted in different ways. The Instagram Terms of Use provided that “other Users may search for, see, use, or share any of your User Content that you make publicly available through” Instagram. But the court pointed to a different document, Instagram’s Platform Policy, which instructs users to comply with usage restrictions imposed by owners and prohibits users from violating the intellectual policy rights of others. Although Instagram had the right to license the photograph under the Terms of Use, the court found there was no evidence that Newsweek had an express or implied sublicense through that policy.

Ultimately, the court concluded that the Terms of Use and the Platform Policy combined to make the issue unclear, and the case could not be dismissed on the pleadings. The court also rejected the affirmative defense of fair use because the photograph was not the subject of the news article, and thus was not transformed through mere token commentary. A few days later, Instagram entered the fray by stating to a tech website that users do not receive a copyright license from Instagram to embed photos.3

The Southern District of New York returned to the embedding issue again on June 24, 2020, when it reconsidered the dismissal of the complaint in Sinclair.4 The court adhered to its prior ruling that Instagram had a right to sublicense the plaintiff’s photograph to Mashable. However, following the reasoning of McGucken, the court revised its opinion to find the pleadings contained insufficient allegations that Instagram had granted a sublicense to Mashable.

The court observed that a “license must convey the licensor’s ‘explicit consent’ to use a copyrighted work.” In line with McGucken, the court held that Instagram’s policies were not sufficiently clear to draw a conclusion as to whether a sublicense had been granted. Sinclair’s motion for reconsideration was granted and the case resumed.

Most recently, on Feb. 9, 2021, Sinclair was dismissed following a settlement between the parties. While fortunate for those parties to conclude litigation, the result is unfortunate for those seeking clarity on the issue of embedded images in copyright law. McGucken continues on, and the possibility remains that the case could set precedent for courts to rely on throughout the country.

Users should be cautious both displaying copyrighted media on social media sites and using that media to embed elsewhere. A user gives up certain control over media once it is uploaded to a site like Instagram or Twitter. All users should read terms of service and site policies to be aware of those risks. Artists and professionals who rely on their media for their livelihood should be especially cautious.

Sinclair and McGucken are examples of users commencing costly litigation against large companies. Without clarity on the issue of embedded media, there are steps companies and individuals can take to avoid such costly litigation. One option for users is to license the media from the copyright owner before embedding it. Another is to rely on in-house media or an in-house artist to create media for a company. Finally, Creative Commons is a public license that allows free use of the works of creators who have approved of that public use. There are different versions of a Creative Commons license available that may limit or expand the rights of the license. Individuals and companies alike can utilize those options to mitigate risk until courts provide further direction.

Andrew T. Warren is the principal attorney of Trenholm Warren LLC in Boston and represents clients in copyright, trademark, sports and media matters. Warren is also active in creating legal branding and IP protection strategies for cannabis startups.

1Sinclair v. Ziff Davis, LLC, 18-CV-790 — Document 31 (S.D.N.Y. 2020).

2 McGucken v. Newsweek LLC, et al, 19 Civ. 9617 — Document 35 (S.D.N.Y. 2020).

3Timothy B. Lee, “Instagram Just Threw Users of its Embedding API Under the Bus,” Ars Technica (June 4, 2020, 5:32 PM),

4 Sinclair v. Ziff Davis, LLC, 18-CV-790 — Document 41 (S.D.N.Y. 2020).