In the event you’re posting, blogging, or otherwise covering news of your games, note that you might potentially run into legal issues if you’re embedding photos or posts from Instagram, Twitter, or other social media platforms.
Case #1: Goldman v. Breitbart et al (Twitter)
Ruling: February 14, 2018, 2nd Circuit (New York)
Here, the photographer took a picture of Tom Brady in 2016 and owned the copyright to the photo (although not necessarily the right of publicity of Tom Brady). Goldman posted the picture to Snapchat, which then went viral and ultimately ended up on twitter via 3rd parties. The Defendant news outlets’ then wrote articles about Tom Brady and embedded those tweets.
Before this case, copyright law was pretty clear that infringement is done by the entity wrongly hosting the content, not merely linking to it.
Now, there are some historical cases regarding copyright infringement as it pertains to hosting images from a search, like with the Perfect 10 v. Google case, Kelly v. Arriba Soft Corp, but this court decision decided to disagree with that decision history.
[W]hen defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result.
https://www.eff.org/files/2018/02/15/goldman_v_breitbart_-_opinion.pdf
Yeah, a lot of people and copyright organizations disagree with that. However, because this was a decision by the 2nd Circuit, and because the prior cases were by the 9th Circuit, there’s a disagreement among the courts on that matter, and only the Supreme Court of the United States (or a follow up decision by one of the prior courts coming in line with the other court) can settle that decision once and for all, nationally speaking.
Case #2: Sinclair v. Mashable (Instagram)
Ruling: April 13, 2020, 2nd Circuit (New York)
The issue in this case started in 2016, when professional photographer Stephanie Sinclair posted a photo, for which she owned the U.S. copyright, onto her public Instagram account. Ziff Davis, the listed defendant in the case and owner of Mashable, sought a license for one of Sinclair’s photos, offering to pay her a mere $50. She declined.
A few days later, Mashable embedded her photo on Instagram into one of its articles. You can read more on the background of the case and the opinion dismissing her complaint here.
Sinclair later filed a copyright infringement suit against Ziff Davis/Mashable, claiming they failed to obtain a license from her, and thus violated her copyright.
Here’s the kicker: because Sinclair posted her picture to a public account, the Court ruled that her prior agreement to Instagram’s Terms of Use granted Instagram a SUBLICENSE to publicly posted pictures (i.e. the right to freely license the image to anyone using Instagram’s API).
The court dismissed her case, meaning Mashable won.
That was April 2020.
Case #3: McGucken v. Newsweek (Instagram)
Ruling: June 1, 2020, 2nd Circuit (New York)
The end result here was that the court didn’t find any evidence that Instagram granted a sublicense to the news outlet for embedding.
In 2019, landscape photographer Elliot McGucken posted a photograph on Instagram. The next day, Newsweek embedded the Instagram image into one of its articles. McGucken sued for copyright infringement.
Newsweek sought to dismiss the case, alleging that either it had a valid embedding sublicense per the discussion above in the Sinclaire case, or it constituted fair use.
The court goes through a fairly thorough fair use analysis (page 10, section 2), that might be interesting for you to review, or you can see my discussion on the matter here for part 1, and here for part 2. Conclusion: not fair use.
Note, this ruling doesn’t disagree with the Sinclair ruling, it just says that “Although Instagram’s various terms and policies clearly foresee the possibility of entities such as Defendant using web embeds to share other users’ content…none of them expressly grants a sublicense to those who embed publicly posted content. Nor cant he Court find, on the pleadings, evidence of a possible implied sublicense.” (Order pg. 9-10).
On June 4, 2020 (4 days after the McGucken ruling), Ars Technica reported its discussion with Instagram the following:
Instagram does not provide users of its embedding API a copyright license to display embedded images on other websites…
“While our terms allow us to grant a sub-license, we do not grant one for our embeds API,” a Facebook company spokesperson told Ars in a Thursday email. “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.”
https://arstechnica.com/tech-policy/2020/06/instagram-just-threw-users-of-its-embedding-api-under-the-bus/
So, what do you do?
Before embedding a picture from Instagram or Twitter, consider fully whether your use of that picture will constitute fair use. If not, consider reaching out to the poster for a license (they might do it for free, especially if it’s part of a review of your games or something else to do with your company).
Not sure if your use would be “fair use”? Read my articles or check out New Media Rights’ Fair Use App.