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Technology has pushed industry and commerce to heights that people like Vanderbilt and Carnegie would struggle to dream of, but technology also poses a lot of questions, questions the legal profession is responsible for answering.

Concerning intellectual property law, there has been recent legal development regarding a social media platform that millions are familiar with, you might have even liked or shared a picture on it today, Instagram.

This article is not meant to reflect Instagram in any kind of poor light, however, it is an encouragement to any Instagram users (especially professionals) to read the agreement you “sign” when you make an Instagram account.

Sinclair v. Ziff Davis, LLC. was decided last week in a federal court in the Southern District of New York, where a plaintiff named Stephanie Sinclair, professional photographer, sued on a legal claim of copyright infringement against a company named Mashable Inc., which she claimed used her picture on their website without their permission.

Here’s the thing, Mashable Inc. technically did, and also didn’t. They used a process called embedding, which links the picture to a third-party server, and creates a pathway on the website to view that picture.

The plaintiff argued in light of her clearly denying Mashable permission by rejecting an offer to license the picture, that they had violated copyright law. However, the location that Mashable pulled the picture gave Mashable a way out. The plaintiff had the picture in question on her public Instagram page.

In Instagram’s terms and conditions, there is a grant of permission for users to use “application programming interface” (API) to pull any public profile’s pictures and link to that picture on the user’s independent website. So, while the plaintiff did not give Mashable permission to do what they did, Instagram did.

This was all the court needed to hear because the plaintiff relinquished her rights to make this claim once she posted this image on her public profile.

For most people, getting views on their public Instagram profile is the goal, which is usually why it is public. However, when you’re a professional photographer and you post trying to add a portfolio for public view, keep in mind that there are certain means (embedding) that are fair game to use your pictures.

Takeaways from this:

  • Photographers, don’t scrap the idea of using platforms like Instagram to market your work, just know that there are concessions in doing it.
  • Also, remember when your business consists of taking/editing pictures, put your “best foot forward” when posting them on public social media because you never know who might see them.


Written by: Christian Dudley

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