US Circuit Court Finds Instagram Not Liable for Copyright Infringement in Photo Embed Case

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Fall photographers for copyright infringement on Instagram

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Photo credit: Adil Ansari

A US appeals court has ruled that Instagram is not liable for copyright infringement of embedded photos.

Two photographers filed a copyright infringement lawsuit against the social media giant after her photos appeared on BuzzFeed News and Time via Instagram’s embed feature. The U.S. Court of Appeals for the Ninth Circuit has found that social media is not liable in such situations because embedding content does not create a copy of copyrighted material.

Alexis Hunley and Matthew Brauer posted their photos on Instagram. In 2016, those photos appeared in a Time article titled, “These Photographers Cover the Presidential Campaign on Instagram.” One of Brauer’s photos was embedded in the article about Hillary Clinton. In June 2020, BuzzFeed News published an article titled “17 Powerful Images of the Protests Through Black Photographers’ Eyes,” which featured work by Alexis Hunley documenting the Black Lives Matter protests.

Neither Time nor BuzzFeed News have sought permission from Brauer or Hunley to license these photos and use them in their coverage of the respective events. Both Hunley and Brauer filed a class action lawsuit against Instagram for allowing the company to embed images without the original artist’s permission. The lawsuit charges Instagram with “inciting copyright infringement, contributory copyright infringement, and vicarious copyright infringement.”

Under copyright law, an alleged infringer must have made a copy of a copyrighted work, but embeds are always served from Instagram’s servers. “(News outlets) do not violate the exclusive viewing rights of Instagram users. Because they don’t store the images and videos, they don’t “fix” the copyrighted work in a “tangible medium of expression.” Therefore, embedding the images and videos does not show “copies” of the copyrighted work,” the court said. Hunley appealed that verdict, but the Court of Appeals for the Ninth Circuit affirmed the verdict.

“By posting photos on her public Instagram profile, Hunley has saved a copy of those images on Instagram’s servers. By displaying Hunley’s images, Instagram did not directly infringe Hunley’s exclusive display right because Instagram held a non-exclusive sublicense to display those photos,” the appeals court’s statement said reads.

“Because BuzzFeed and Time have embedded, but not saved, the underlying copyrighted photos, they are not directly guilty of infringement. In the absence of direct injury, Hunley cannot prevail on any secondary liability theory.”