Can Use of Embedded Images Avoid Copyright Infringement?
Federal Court Holds that Embedded Images Do Not Violate Copyright
The creative community was dealt a significant blow this month when federal courts ruled that the embedded images of a photo from an Instagram account did not constitute copyright infringement even when the account owner had specifically denied requests to use the image in dispute.
Sinclair Sues Mashable for Embedded Images Use of Her Copyrighted Work
Since 2016, Stephanie Sinclair has been embroiled in a copyright infringement battle with technology website Mashable. Ironically, the dispute arose when Mashable published an article on their website about Sinclair and nine other female photojournalists in order to laud their work in documenting social justice via the camera lens.
As one of the photojournalists listed, Mashable offered Sinclair fifty dollars to license use of one of her photographs in connection with their piece about her. When Sinclair rejected Mashable’s offer, Mashable proceeded to use Sinclair’s photograph regardless of her consent, opting to embed the photograph directly from Sinclair’s official account. Sinclair responded by taking Mashable to court.
How Do Embedded Images Work?
As Sinclair’s intent is not at dispute, many expected the courts to side with Sinclair as courts generally try to honor the intent of the copyright owner when there may be ambiguity or conflict between the two parties. But the wrinkle here comes from the fact that Mashable embedded the photo via Sinclair’s official Instagram account. Embedding here means that Mashable directly integrated Sinclair’s photo into their article but never actually downloaded and/or uploaded Sinclair’s photograph to their own servers. In essence, Mashable’s embedded image provided a visual link of sorts to Sinclair’s photograph directly, but to the naked eye, the viewer would only see Sinclair’s photograph on Mashable’s website.
Copyright Infringement and Embedding
The question of whether use of embedded images constitutes copyright infringement has arisen before in other contexts, mainly regarding whether or not publishers are liable for contributory or indirect infringement when embeds are published on their websites. In these cases, courts have often sided with publishers, holding that these websites’ use did not constitute infringement because the mere act of embedding itself did not meet the definition of distribution, display, or performance.
In the case at hand, the court seemed to hold that Mashable’s use was defensible because Mashable had arguably been granted a sublicense of the photograph from Instagram and not Sinclair herself, and as such, that sublicense from Instagram was valid because the license between Sinclair and Instagram was valid.
Key Takeaways Regarding Embedded Images and Copyright Infringement
The federal court’s decision to hold that embedding images does not constitute copyright infringement can be troubling because:
it can allow third parties to use original works without the owner’s consent;
it can affirm the widespread distribution of original works without the owner’s consent;
it raises new questions about attribution and compensation; and
such precedent may extend beyond copyrights to other intellectual property.
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