Sinclair v. Ziff Davis, LLC

District court dismisses copyright infringement case for failure to state claim, finding defendant news website that embedded Instagram image in article had valid sublicense because plaintiff photographer, in posting photo to her public social media profile, consented to Instagram’s Terms of Use and Privacy Policy, empowering Instagram to grant sublicenses.

Plaintiff, a professional photographer, sued Mashable, a media and entertainment platform that operates the website mashable.com, and its parent company, Ziff Davis, claiming that the entities had infringed her copyright in a photograph that she had previously posted to Instagram. The claim stemmed from Mashable’s publication of an article about female photographers that embedded plaintiff’s photograph from Instagram using the social media platform’s application programming interface (API). The use of the embedding technology meant that each time the article was displayed, the API retrieved and displayed the image from Instagram. Mashable had previously offered to license the photograph directly from plaintiff for $50, but she had declined.

The court dismissed the claim against Mashable, finding that the news site had procured a valid sublicense from Instagram to use plaintiff’s photograph. In reaching this conclusion, the court cited Instagram’s Terms of Use, under which plaintiff granted 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.” The Privacy Policy provided that all content posted to “public” accounts, such as plaintiff’s account, were searchable by the public at large and subject to use by others through Instagram’s API. The court reasoned that because “[p]laintiff uploaded the Photograph to Instagram and designated it as ‘public,’ she agreed to allow Mashable, as Instagram’s sublicensee, to embed the [p]hotograph in its website.” 

The court dismissed the idea that the sublicense should be invalid because Instagram’s Terms and Condition and Privacy Policy, which created the sublicense, were “complex” and “interconnected.” The court held that by choosing to share her content on a public profile on the platform, plaintiff entered into an agreement including the Terms of Use and Privacy Policy and could not be released from that agreement. Mashable’s prior solicitation of a license from plaintiff did not alter the court’s conclusion, as “[p]laintiff’s right to grant a license directly to Mashable, and Instagram’s right, as [p]laintiff’s licensee, to grant a sublicense to Mashable, operate independently.”  

As for plaintiff’s claim against Mashable’s parent, Ziff Davis, the court determined that plaintiff had not pled any involvement by Ziff Davis in the purportedly infringing activities. The complaint merely pled corporate ownership of Mashable by Ziff Davis, which was insufficient to sustain a claim for infringement against the parent company.

Summary prepared by Melanie Howard and Sarah Levitan Perry