
Judge rules in favor of Mashable on embedded Instagram photo copyright case - holdup
https://www.law.com/newyorklawjournal/2020/05/20/social-media-postings-may-risk-user-copyrights/
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holdup
Why you should always read the terms of use.

In Sinclair v. Zi Davis and Mashable, a professional photographer sued
Mashable for embedding a publicly visible photo through Instagram's API
(they'd previously offered to license the photo for $50, which the
photographer rejected).

Instagram's Terms of Use state that users "grant to Instagram a non-exclusive,
fully paid and royalty free, transferable, sub-licensable, worldwide license
to the Content that you post on or through [Instagram], subject to
[Instagram's] Privacy Policy." By using Instagram's embed option, Mashable
became a sub-licensee, allowing them to post the photo without paying a
royalty or needing additional permission.

Therefore, Judge Kimba Wood in the Southern District of New York decided that
"...by posting the Photograph to her public Instagram account, Plaintiff made
her choice. This Court cannot release her from the agreement she made."

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From the article (behind a paywall):

"The court's decision noted that Mashable did not make a copy of the protected
photograph and reproduce it in the published article. Rather, Mashable
"embedded" the photograph which appeared in the article. Embedding is a
technical procedure whereby a website can use code to direct a user's computer
to fetch an image from a third-party server. Instagram utilizes computer code
called an API (application program interface), which allows any Instagram user
to access and share any content posted by other Instagram users provided those
accounts are set in the "public" mode. The end user's Internet browser is
instructed by the API to locate the image and display or embed it as part of
the website's content. This process occurs so quickly that the user sees the
image as direct, even though the photograph actually resides on a third-party
server. Instagram's API permits any of its users to embed Instagram posts
created and owned by others into their own Instagram accounts or on their
websites."

