Court Rules Photographer Gave Up Exclusive Licensing Rights by Posting on Instagram
When it comes to appropriating images found online, the situation is understandably confusing. If an individual posts something on social media, does that give someone else the right to use it in a different forum? Most lawyers would likely answer, "Not so fast," and yet on Monday came a suggestive ruling perhaps otherwise from a New York federal court.
The plaintiff in the case is Stephanie Sinclair, a professional photographer known for exploring gender and human rights issues around the world. Her work has been featured in The New York Times, Time magazine and National Geographic. She uploaded one of her photographs — an image of a mother and child in Guatemala — to Instagram. Later, the news site Mashable contacted her because it wanted to reuse the image for a story on female photographers. Mashable offered $50. Sinclair declined. Mashable used the image anyway by embedding her Instagram post in its story. Sinclair claimed copyright infringement.
How would the case play out? Would it turn on application of the so-called "server test," where liability for direct infringement depends on where the infringing images are stored? Two years ago, in a case that involved an embedded image of NFL quarterback Tom Brady, a different New York federal judge rejected the server test and ruled that news websites could be liable for using embedded images. That ruling had throngs of lawyers expressing concern about a potential disruption to the online ecosphere.
Oddly, that decision in Goldman v. Breitbart gets only a brief mention in Monday's opinion — basically, a footnote to explain the embedding process. Instead, U.S. District Court Judge Kimba Wood decides to veer in a totally different direction, and in so doing, light potential fireworks.
https://www.hollywoodreporter.com/thr-esq/court-rules-photographer-gave-up-licensing-rights-by-posting-instagram-1290170
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