Photographer Asks Supreme Court to Decide if Embedded Instagram Posts Infringe Copyright
A photographer is asking the Supreme Court to decide whether a website infringed his copyright by embedding his Instagram posts without his permission.
Websites can use embed social media posts to share images on articles without hosting it directly, but photographer Elliot McGucken is arguing that it violates his copyright.
According to a report by Digital Camera World, McGucken filed a petition for certiorari (a request to review) on March 28 as part of his lawsuit against media company Valnet, Inc. which operates the website thetravel.com.
In his lawsuit, McGucken accused thetravel.com of infringing his copyright in 36 photographs by embedding them without permission from his Instagram page over multiple articles.
If thetravel.com had made new copies of McGucken’s photographs and uploaded them on its website, it would have been a straightforward case of copyright infringement.
However, the website displayed the images by embedding them directly from McGucken’s Instagram page. While Instagram does not grant permission for companies to embed these images, a 2007 Ninth Circuit ruling known as the “server test” established that when an image remains on a third party’s server and is not stored on the infringer’s computer, embedding it does not count as a new display. In other words, embedding the original display of the image in a new context does not constitute copyright infringement.
Digital Camera World reports that McGucken’s petition asks the Supreme Court to review the constitutionality of the server test and consider whether a website’s unauthorized display of an image violates copyright, no matter what technology is used to show the work.
The district courts and Ninth Circuit court both dismissed McGucken’s complaints. But the photographer is now turning to the Supreme Court to consider if displaying an image using embedding tools infringes copyright laws. The court will respond by May 1.
This is not the first time a photographer has attempted to challenge the server test. In 2023, Instagram beat a class of photographers in a lawsuit that claimed the Meta-owned platform contributes to copyright infringement by letting outside websites embed images.
Photographers Alexis Hunley and Matthew Brauer filed a class action lawsuit against Instagram after Buzzfeed and Time embedded their images without consent. Hunley and Brauer claimed that Instagram abused their copyright by allowing news outlets like Time and Buzzfeed to embed the photos that they shared to their profiles.
However, a three-judge panel at the 9th U.S. Circuit Court of Appeals ruled that Instagram was not liable for copyright infringement because when a photo or video is embedded, no copy is made of the underlying content.
Image credits: Header photo licensed via Depositphotos.
