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New York Court Declares Embedded Instagram Post to be Fair Use, Further Splintering Treatment of Social Media Embeds

In March 2020, photographer Michael Barret Boesen filed suit against the owner of sports news website, LongIslandTennisMagazine.com claiming that the website infringed on his copyrights by embedding an Instagram post featuring his photograph of tennis player Caroline Wozniacki.

 

The post was embedded in an article reporting on Wozniacki’s retirement announcement, which she made via the same post. The website, in response, cited fair use as a complete defense to Boesen’s claims. In its decision on November 2, 2020, the Court found the website’s embedding of Wozniacki’s post to indeed be fair use.

The Fair Use Defense

In its decision, the Court made a narrow distinction between the copyrighted photograph contained within the post and the post itself, stating “embedding social media posts that incidentally use copyrighted images in reporting on the posts themselves transforms the original works, supporting a finding of fair use.” The Court partially based its opinion on an earlier case finding that the “use of a copyrighted photograph may be appropriate where ‘the copyrighted work is itself is the subject of the story, transforming the function of the work in the new context.’” In the instant case, the Court acknowledged that Boesen had copyrights in the underlying photograph and that the website did not license the photograph. Nonetheless, the Court found that situating the Instagram post announcing Wozniacki’s retirement within a news article about her retirement was a transformative use sufficient to sustain a fair use defense.

The Broader Implications for Companies in Resharing Social Media Content

This decision becomes another in a growing attempt by courts to define the parameters of social media embeds. These attempts have largely resulted in a series of mixed decisions as to if and when social media embeds constitute copyright infringement. For example, in 2007, the Ninth Circuit found that Google’s use of embedded images in its search engine was not copyright infringement because Google did not store the images on its servers. On the other hand, numerous courts have since rejected this reasoning, finding copyright infringement for embedded tweets featuring copyrighted images and for embedded images “framed” by surrounding web content.

This trend has continued in 2020, yielding several notable cases levied against websites, individuals, and content creators on the basis of social media embeds. Among these were claims brought against news sites Newsweek and Mashable.com. In both sets of pleadings, the websites argued that Instagram’s Terms of Use and embed tool granted the websites an implied license to repost or embed the underlying work. This argument was rejected in both cases with the judge finding that Instagram’s Terms of Use were too ambiguous to form the basis for the dismissal of the copyright infringement claims. Since these cases, Instagram has publicly announced that its Terms of Service do not necessarily create an implied license and that the onus is on companies to ensure that they have the proper licenses before embedding.

Takeaway

This slew of recent cases, including the Wozniacki case, serve as a reminder that the interplay between copyright and social media embeds continues to be actively shaped by the courts, and that companies should approach social media embeds with caution.

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