On April 14, Eric Garder, writing for the Hollywood Reporter, published a story under the headline: Court Rules Photographer Gave Up Exclusive Licensing Rights by Posting on Instagram. There is nothing technically wrong with that headline—and Gardner did not, I believe, misrepresent any facts in his article. But when I saw photographer Doug Menuez share this story on Facebook the other day, I had the same gut reaction that I bet a lot of visual artists and copyright watchers had. Those words “gave up” made me think, Great, some judge has actually ruled that posting an image on a social media account extinguishes all copyright in the work. (Yes, that is how the nerd in my head always talks.)
I noticed that copyright attorney Leslie Burns, who represents many photographers, bemoaned on Twitter the fact that this story is already being described as one in which uploading to Instagram et al automatically terminates copyrights. That is certainly not what the judge ruled in Sinclair v. Ziff-Davis and Mashable earlier this week. But there is still much to this story—a good news/bad news tale—that should be of great concern to copyright owners.
The good news is that Judge Kimba M. Wood of the District Court for the Southern District of New York (SDNY) did not articulate any new opinions whatsoever with respect to copyright law. The bad news is that what happened to professional photographer Stephanie Sinclair is yet another reminder that the major tech platforms are predatory animals whose Terms of Service are toxic to creators. Here are the basics …
Sinclair, like many a visual artist needing recognition, posted her work on Instagram under a Public account. On March 16, 2016, Mashable published an article about women photographers and displayed Sinclair’s unlicensed photograph by means of embedding, using Instagram’s API by pointing to the file located on Instagram’s servers. Anyone who might want to interject that the “server test” protects Mashable, hold that thought.
The simple, unfortunate reality is that by uploading her work, the copyright owner “grant[s] 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.” In a nutshell, Sinclair, and every other creator uploading works to a Public account, grants Instagram this right to sub-license those works.
In fact, as Terrica Carrington of Copyright Alliance notes, “These licenses, which are very similar for all the major platforms, are so broadly written that Instagram could, in theory, sub-license a visual work to any party for any use by any means, and even charge the sub-licensee money for it. We haven’t seen the platforms do anything this bold, and they might never do it because it would be bad PR, but the Terms of Service are written broadly enough to allow them to do it legally.”
Of course none of us reads the Terms of Service (TOS), and for two very good reasons: first, because these agreements are epic and barely comprehensible (Instagram’s runs over 17,000 words); and 2) because opting out of social platforms is not necessarily a viable choice, especially for creators who need a certain amount of publicity to survive. (See what artist Dima Yarovinsky did with the Terms of Service contracts for seven of the most popular platforms.)
Remember that tech-utopian mantra that was popular a few years ago? It went something like, The problem for creators isn’t copyright, it’s obscurity. That was shorthand for the insidious proposition that social platforms provide free venues for creators to expose prospective consumers to their works. While this was/is true to an extent, many experienced creators and rights advocates also pointed out that free publicity channels aren’t worth much, if the same platforms create both motive and means for rampant, unlicensed use of works.
Sinclair notes this rock-and-a-hard-place issue in her complaint, to which Judge Wood replies, “Unquestionably, Instagram’s dominance of photograph-and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that Plaintiff’s dilemma is a real one. But by posting the Photograph to her public Instagram account, Plaintiff made her choice. This Court cannot release her from the agreement she made.”
As a practical matter, Sinclair’s untenable litigation is a cautionary tale in which the lesson may be that creators should never upload works they intend to protect onto these platforms. Indeed many photographers do adopt such a policy, but that can be a very difficult decision for many. To echo Sinclair’s point, it is a fine line between social platform as opportunity and social platform as a mandatory appendage one must accept in order operate in the contemporary market at all. File this under the heading the internet giveth, and the internet taketh away.
So What About That Server Test?
As many readers already know, the server test (or server rule) generally says that when a user of an online platform embeds a link that causes a work (usually an image) to appear on the user’s page, this action does not infringe copyright. For more details see posts here, here, and here; but for a long time, the legal precedent has been that by “pointing” to a file on a server where the work is presumed to be legally copied, this action clearly does not infringe the reproduction right.
But to any ordinary observer, a photograph on a web page would certainly seem to implicate the creator’s display right, no matter how the page editor caused that image to be displayed. And that’s pretty much what Judge Katherine Forrest held in Goldman v. Breitbart et al, also in the SDNY, in February 2018. In that case, several news organizations had embedded Justin Goldman’s photograph by pointing to Twitter’s servers, and Judge Forrest held that, “… when 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 does not shield them from this result.”
So, although there was no reason for the server rule to have been addressed in regard to Sinclair’s complaint against Mashable, it is reasonable to assume that this defense would not have availed Mashable had it been raised. But, what a strange and messed-up situation we have for creators.
Instagram (and the other platforms) write TOS so broad that they could, technically, sub-license a work for any use without a creator’s permission. In practice, these licenses have, thus far, only applied in cases where the sub-licensee embeds images hosted on the first platform’s servers. But the question remains open (i.e. split among circuits) as to whether the server rule unjustly extinguishes the display right.
So, you see where I’m going here: the non-negotiable, labyrinthine contracts that creators must sign in order to use social platforms, weaken their copyrights by means of conduct that has been held to infringe under circumstances barely distinguishable from those in Sinclair’s complaint. Yes, the attorneys and legal experts see the distinction between a contract matter and one of case law under the copyright act. But the bottom line for the creators is that corporate interests are still ripping them off.
