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Instagram can sublicense your public posts

Who would have thought that you should read the terms of service for Instagram? Apparently not Stephanie Sinclair (see Sinclair v. Ziff Davis, LLC et al, Case 18-cv-790, S.D.N.Y., Dkt 31, copy hosted on Mega.nz).

Ms. Sinclair posted a photograph to her Instagram account that was set to public. Ziff Davis owned Mashable attempted to get a license from Ms. Sinclair to use that image. She did not accept their offer. Mashable then embedded the image using the Instagram API in their story. Ms. Sinclair was not amused and sued. The Court just dismissed her copyright complaint.

When a user creates an Instagram account, they agree to the Terms of Use. By posting content to Instagram, the user grants Instagram "a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings)" (Terms of Use, "Permissions You Give to Us"). When you set your account to Public, your information "can also be seen, accessed, reshared or downloaded through third-party services such as search engines, APIs, and offline media such as TV, and by apps, websites and other services that integrate with our Products" (Data Policy, section III. How is this information shared?). The Instagram API allows users to "share media using web embeds" (Platform Policy, Preamble).

Thus, when an Instagram user uploads a "public" image to Instagram, they are licensing Instagram to use the image, and they are giving Instagram the right to sublicense the use of the image to third-parties.

You should read the terms of service, even if no one else does (see Business Insider story).

Photo by Freestocks.org from Stocksnap


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