Photographer Wins Copyright Lawsuit Centered on Instagram Embeds

Renowned nature photographer and Sony Artisan Paul Nicklen has won a copyright lawsuit against the Sinclair Broadcast Group, which embedded a video from Nicklen’s Instagram on its website and featured a screenshot from it without seeking permission.

As noted by JD Supra, Niklen shot a short video of a starving polar bear and posted it to Facebook and Instagram in 2017. PetaPixel published the clip with permission from National Geographic, but neither Nicklen nor National Geographic provided permission to the Sinclair Broadcasting Group, which embedded the Instagram post to its own sites and teased the article with a screenshot taken from the video. Sinclair asked the court to dismiss Nicklen’s complaint and argued that embedding a video is not copyright infringement and therefore the publication of the video was fair use.

Judge Jed Rakoff of the Southern District of New York disagreed, as Sinclair did not simply embed the Instagram post, but also used a screenshot from the video to promote the article.

Rakoff says that copyright is defined by the “display” of work as showing “a copy of it, either directly or by means of a film, slide, television image, or any other device or processor, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.” Combined with the plain meaning of the word “show,” the “defendant violates an author’s exclusive right to display an audiovisual work publicly” if a defendant “causes a copy of the work, or individual images of the work, to be seen — whether directly or by means of any device or process known in 1976 or developed thereafter.” Rakoff further added that “the exclusive display right set forth in the Copyright Act is technology-neutral” and is “concerned not with how a work is shown, but that a work is shown.”

Sinclair argued that because the content was stored on another server, embedding that content was not the same as outright displaying it. Rankoff disagreed. He also found that because Sinclair used a still image of the video regardless of whether the user clicks to play the video or not further added to the case of copyright infringement.

The “server rule” protects many organizations from copyright infringement, as explained by Columbia Law:

The “server rule” holds that online displays or performances of copyrighted content accomplished through “in-line” or “framing” hyperlinks do not trigger the exclusive rights of public display or performance unless the linker also possesses a copy of the underlying work. As a result, the rule shields a vast array of online activities from claims of direct copyright infringement, effectively exempting those activities from the reach of the Copyright Act. While the server rule has enjoyed relatively consistent adherence since its adoption in 2007, some courts have recently suggested a departure from that precedent, noting the doctrinal and statutory inconsistencies underlying it.

Rankoff rejected a Sinclair argument that said such a ruling “would impose far-reaching and ruinous liability” and would grind “the internet to a halt,” since the crux of the issue wasn’t necessarily just the embed of the video, but the use of a screenshot that did not require the video to be explicitly played or the embed to be viewed. Basically, the embed was argued to be not be required viewing in order to see Nicklen’s content.

The rulings surrounding the embedding of content from social media have resulted in somewhat unclear rules of engagement for media publications. On the one hand, Instagram and its parent company Facebook are being sued for allowing content posted to the sites to be embedded at all. Instagram recently adjusted its policies and states that media needs to still seek permission from artists in order to embed content from the site.

On the other hand, judgments like the one in Nicklen v. Sinclair Broadcasting Group mainly hinge on screenshots of embeds and not the embedded material itself.

One solution that Facebook seems reluctant to employ has been used by both YouTube and Vimeo for some time: embed restrictions. It is possible to now allow content uploaded to either video service to be played natively through embeds, and since this is a toggleable option, it allows content creators to decide if they want their work shared via embed. Because Facebook doesn’t make this an option, it could be argued that the company is complicit in allowing copyright infringement. That may be the core of the class action lawsuit aimed against Facebook, which states that the company “induced online publishers” to embed links to Instagram in order to drive traffic — and by association advertising revenue — to the site.

Image credits: Elements of header photo licensed via Depositphotos.