Instagram Wins Court’s Favor In Row Alleging Embedded Posts Violate Copyright

Photo 206017241 © Natanael Alfredo Nemanita Ginting | Dreamstime.com

The ‘Embed’ button accompanying posts on social media has been a point of contention for years. The feature enables third parties to share uploaded content on their own websites by copying and pasting a code, with the media resting inside the social network’s server the whole time. Creators have lamented that the function means their work can be passed around the internet against their knowledge.

In the past, judges took the side of photographers, who discovered that their images were being featured on publications, via embeds, without their consent. In 2018, a photographer uploaded an image of Tom Brady on Snapchat, which then made its rounds on Twitter before being picked up by several news outlets. The photographer sued the publishers themselves—instead of the social media platforms—for copyright infringement, and won.

New York Judge Katherine Forrest ruled then that “the fact that the image was hosted on a server owned and operated by an unrelated third party does not shield them from this result,” as quoted by Gizmodo.

Remarkably, the opposite was said by a US court in another ruling this week.

On Monday, the Ninth Circuit Federal Appeals Court in northern California proclaimed that sharing embedded posts, and allowing the embedding of posts on websites, isn’t necessarily tantamount to a copyright violation.

In this instance, Instagram was being sued in a class-action lawsuit launched by Alexis Hunley and Matthew Brauer, who in 2021 accused the Meta-owned platform of letting news channels publish their copyrighted work without having to secure a license.

The creators cited a report from BuzzFeed News that used one of their photos of a Black Lives Matter protest in 2020, as well as a TIME feature that embedded one of their images of Hillary Clinton. They also argued that the embed option deceives users into thinking that it’s alright to display protected works as and when they wish.

In February 2022, California Judge Charles Breyer agreed with Instagram’s justification that the news sites weren’t holding on to “copies” of the photos. He tossed out the case, leading the plaintiffs to file an appeal.

Which brings us to the present, and it’s again not looking good for the photographers. The Ninth Circuit has emphasized once more that, when a media outlet embeds copyrighted images into their pages, it doesn’t make unauthorized copies. Rather, it notes that the content is still hosted and stored in Instagram’s servers, and all that the publications are sharing is a mere link inside the embed code.

How it got to its decision is interesting, considering how members of the legal system aren’t known to be particularly tech-savvy.

The appeals court actually dissected the HTML codes of embedded social media posts, and from there, it decided that the text doesn’t contain infringing images. Instead, the codes include a plain web address of where the content is stored.

“The embedding website does not store a copy of the underlying image,” the court determined. “Rather, embedding allows multiple websites to incorporate content stored on a single server simultaneously.”

This ruling adds a layer of complexity to the copyright landscape, emphasizing the need for artists and photographers to understand the nuances and implications when it comes to protecting their creative works in the digital realm.

[via Gizmodo and Sportico, cover photo 206017241 © Natanael Alfredo Nemanita Ginting | Dreamstime.com]

This article was crafted with assistance from an AI engine, and has been reviewed, edited, and fact-checked.