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Instagram Embedded in Class Action Copyright Infringement Lawsuit

In May 2021, two photojournalists filed a class action lawsuit against Instagram, alleging that the social media giant allowed and encouraged third parties to ‘embed’ images shared to the platform in violation of copyright law.
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The complaint alleges that Instagram “encourage[es], induc[es], and facilitate[es] third parties to commit widespread copyright infringement…by using Instagram’s ‘embedding’ tool to display copyrighted works of Instagram users on third-party publisher websites…without appropriately compensating copyright holders.” The complaint further alleges that Instagram’s activities are part of a larger “scheme that denies the copyright owner the right to protect their copyrighted works” while simultaneously generating traffic and advertising revenue from consumers directed to Instagram by the third party embeds.

According to the complaint, such activities constitute the inducement of copyright infringement, contributory copyright infringement, and vicarious copyright infringement, making Instagram liable for “damages for each copyrighted work infringed by each third-party embedder.” The plaintiffs, on behalf of “potential many thousands” of Instagram users, are seeking damages, disgorgement of profits derived from embeds, injunctive relief, and attorneys fees.

Evolving Landscape

This suit becomes another in a recent surge of cases attempting to reconcile the ever-evolving social media landscape with the well-settled parameters of copyright law. The complex, and at times inconsistent, copyright treatment of social media embeds can be largely credited to the roundabout manner in which embeds allegedly reproduce the underlying work. Unlike more straightforward instances of copyright infringement, such as copying and pasting an image for example, social media embeds instead direct users to the platform on which the underlying image is stored. Courts are split as to whether this constitutes copyright infringement as contemplated by current copyright laws.

Notably, while such prior cases have historically targeted the third-party embedders, the plaintiffs here sued the social media platform directly, thereby shifting the focus from the act of embedding to the existence of the function itself.

Takeaways

While in the early stages, this case may signal significant changes to the social media legal landscape. As courts continue to wrestle with social media embeds and their relationship to copyright law, companies should approach social media embeds with caution and should be reminded that the ability to embed is not a blanket license in the underlying work. Companies should ensure they have the appropriate clearances to use such works, which can include seeking consent or a license to use an image for commercial purposes.

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