According to an Instagram statement, site owners might have to get permission from Instagram users before they embed their posts on a web page.
Right now, Newsweek is getting sued for copyright infringement by a photographer who’s Instagram post was embedded on their site without permission.
Because of the decisions that could be made in this case, there could be some serious implications for site owners who use media uploaded to Instagram.
Newsweek had reached out to a photographer for permission to use their photos, but got turned down. Despite this, Newsweek embedded the photographer’s Instagram post on their site, and are now being sued because of this action.
The publication defended themselves saying that permission isn’t required due to the photo being embedded from Instagram instead of being directly uploaded.
It’s written in Instagram’s terms of service that users provide a copyright license to Instagram every time they upload a photo.
According to a statement that was provided to Ars Technica, that license is not extended to sites that display embedded Instagram media.
“While our terms allow us to grant a sub-license, we do not grant one for our embeds API.
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.”
This could bad news to anyone who embeds photos from Instagram on their website.
Currently, the case is still in the preliminary stages. Newsweek has made attempts at getting the case dismissed.
Back in April of 2020, a precedent was set in a similar case where Mashable was sued by a photographer for embedding an Instagram photo without permission.
In that case, Mashable won the case, as the judge decided the photographer “granted Instagram the right to sublicense the photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the photograph.”
But in the case with Newsweek, the judge here sees things differently. They said that there’s not enough evidence to decide if Instagram’s terms of service provides a copyright licence for embedding photos.
Although the precedent set with the Mashable case could have helped get the case dismissed, Instagram’s statement to Ars Technica makes this more complicated this time.
Instagram is fighting this by saying that its copyright license doesn’t apply to embedded photos. Newsweek isn’t able to claim it had a sub-license that would allow them to display embedded media when Instagram stated explicitly otherwise.
For site owners out there, the smart thing to do is to ask for permission before using a photo from Instagram. Send a direct message to the photo owner and if they let you use it, that’s great. If no, just leave it at that.
Until a decision is reached in the lawsuit against Newsweek, it isn’t clear what rights a publisher would have when embedding posts from Instagram.