Court Rules Photographer Gave Up Exclusive Licensing Rights by Posting on Instagram (hollywoodreporter.com) 94
When it comes to appropriating images found online, the situation is understandably confusing. If an individual posts something on social media, does that give someone else the right to use it in a different forum? Most lawyers would likely answer, "Not so fast," and yet on Monday came a suggestive ruling perhaps otherwise from a New York federal court. From a report: The plaintiff in the case is Stephanie Sinclair, a professional photographer known for exploring gender and human rights issues around the world. Her work has been featured in The New York Times, Time magazine and National Geographic. She uploaded one of her photographs -- an image of a mother and child in Guatemala -- to Instagram. Later, the news site Mashable contacted her because it wanted to reuse the image for a story on female photographers. Mashable offered $50. Sinclair declined. Mashable used the image anyway by embedding her Instagram post in its story. Sinclair claimed copyright infringement.
How would the case play out? Would it turn on application of the so-called "server test," where liability for direct infringement depends on where the infringing images are stored? Two years ago, in a case that involved an embedded image of NFL quarterback Tom Brady, a different New York federal judge rejected the server test and ruled that news websites could be liable for using embedded images. That ruling had throngs of lawyers expressing concern about a potential disruption to the online ecosphere. Oddly, that decision in Goldman v. Breitbart gets only a brief mention in Monday's opinion -- basically, a footnote to explain the embedding process. Instead, U.S. District Court Judge Kimba Wood decides to veer in a totally different direction, and in so doing, light potential fireworks. "Here, [Sinclair] granted Instagram the right to sublicense the Photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph," rules Wood.
How would the case play out? Would it turn on application of the so-called "server test," where liability for direct infringement depends on where the infringing images are stored? Two years ago, in a case that involved an embedded image of NFL quarterback Tom Brady, a different New York federal judge rejected the server test and ruled that news websites could be liable for using embedded images. That ruling had throngs of lawyers expressing concern about a potential disruption to the online ecosphere. Oddly, that decision in Goldman v. Breitbart gets only a brief mention in Monday's opinion -- basically, a footnote to explain the embedding process. Instead, U.S. District Court Judge Kimba Wood decides to veer in a totally different direction, and in so doing, light potential fireworks. "Here, [Sinclair] granted Instagram the right to sublicense the Photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph," rules Wood.
Unprofessional photographer (Score:5, Insightful)
" a professional photographer"...She uploaded one of her photographs -- an image of a mother and child in Guatemala -- to Instagram. "
That was her first mistake, no 'professional photographer' would do that, because they would have read the fucking terms of use.
"Instagram claims it does not take ownership of its users' content. But the terms state that the user grants Instagram a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use their content”."
Pretty clear to me.
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Re:Unprofessional photographer (Score:4, Informative)
Re:Unprofessional photographer (Score:5, Informative)
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She clearly refused to earn $50.
Re:Unprofessional photographer (Score:5, Interesting)
She clearly refused to earn $50.
And rightfully so. Photography is worth more than that and you shouldn't support agencies that attempt to diminish the value of people's work. In other news I have an offer for you: Come clean my house for $1/hour. Are you going to "refuse to earn" because you are worth more than that, or have you absolutely no dignity left?
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How much of the other communication context we are missing in the stripped down electronic communication, isn't it?
I've been turning around this: "she could have earned $50 for work", while not justifying reward, that could not support professional.
In fact, I experience the same pressure from cheapness driven clients, who deserve being given a lesson, and would gladly offload my skills in computers and analysis elsewhere. Or did we all create a system, that mostly prefers inexpensive, with very rare exclusi
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Photography is worth what people are willing to pay. This is especially true for luxury products such as Art. What would you like to pay her for that photo right now? If the answer is "I don't want to buy that photo", then there you have it. That's its value. The fact that it's "Art" does not make it more valuable than it really is.
In terms of your example, selling a good is not the same as selling a service. Besides your offering is illegal under labor laws. Licensing a photo for free off of Instagram is n
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Come clean my house for $1/hour.
Trust me, you really don't want me at your place for the next 30 years.
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I mean you can argue that it *should* be worth more than that; or that it would be *nice* if it were worth more than that, but clearly, it is *not* currently worth more than that. Even if the land-grab by powerful tech corps had not been successful (but it is, and bow to them already), it's so easy to make pics nowadays, that simple supply and demand dictates that the value of pictures has dropped, dramatically.
We don't have to like it, we can agitate for political moment to change things a little (not tha
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Most professional website? (Score:4, Insightful)
I'm reminded of when I once saw a website for a professional ocean fish catching service. These were the guys you went to if you wanted, for example, a healthy male nurse shark between 2.5 and 3 meters.
Their website looked designed by a 5 year old using MS paint.
My explanation? Their profession was catching live fish to order. They knew how to do that. Anybody wanting their services for catching wildlife needed to have the aquarium and all the permits. They wouldn't sell you a fish they weren't confident that you could keep alive. So we're talking zoos, professional aquariums, and such. They already knew about these guys, the website was, at most, a place to look up their phone number. It didn't need to be flashy or slick.
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Only if it is an insurance photographer. And then the bad design serves as proof that he isn't just a starving artist trying to find work, he's a real insurance photog; insurance is his life, presentation has no actuarial value.
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professional insurance photographers (Score:2)
I wouldn't be surprised if there are actually more professional(in the "I'm paid for it" sense) photographers working for various insurance companies than there are photographing for the media.
Then add in other similar fields, like those photographing "for hire", for things like product images on sales sites, where the company isn't ever going to worry about copyright, because they want the image of the stuff they're selling out there.
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They often send the people out the take the pictures of the property separately from the people who actually make decisions. Until you have pictures, you don't know if you want to send somebody at all, or if you can just decide from the picture.
Photogs are cheap.
But yes, I used insurance photography as a joke but the biggest niche, or I guess not a niche but the main part of the paid photography field is industrial photography, which is mostly insurance photography that is done for hire for the benefit of t
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Honestly, I'm not quite sure if a specialist fish catcher is quite in the same league as a photographer when it comes to presentation needs and the expected graphical standards.
However, they might be a professional at taking and presenting photographs without knowing the intricacies of web design. Or copyright law, for that matter. Though that can be a detriment to their professional standards.
I'm going to say that a professional photographer who is acting independently today needs to walk a rather fine line. They need to be aware of the terms of service for any images they post to an independent site. However, images they post on the common sites can be valuable advertisement
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It didn't need to be flashy or slick.
Just as well they were selling fish and not photos of fish.
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Re:Unprofessional photographer (Score:4, Informative)
Shake your head all you want, this is indeed exactly how it works. Terms of Service and other things you agree to are, in most cases, legally enforceable. You're making use of their services, you had to agree to their terms to make use of them. Don't like the terms, don't use the service or make sure you don't put anything up you don't want being subject to said terms.
It's not even a matter of supporting the idea of personal property, etc. It's a matter of understanding how laws work pertaining to agreements you enter with entities. Try knowing what the hell you're talking about before spouting angry ignorance eh?
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Eh? Are you new to /. ? Outrage culture is the hip thing right now.
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... and that is why the ignorant outrager is modded -1. /. works ... mostly
Re: Unprofessional photographer (Score:2)
/. works... barely.
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I yield to the cynical
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Their terms of service is why as a photographer I do not post on instagram (ever).
Re:Unprofessional photographer (Score:4, Interesting)
Except Instagram and the economy in general would tank overnight if people were required to read the TOS of every company they dealt with.
Given that the business depends on people not reading it, it’s hard to argue in good faith that it’s an actual contract. I mean in the USA, sure, but adhesion contracts are more or less wish lists in many places.
They have the web logs that show she clicked “I agree” in 2 seconds. Kind of obliterates a good faith claim.
The 30% have to live with what the 70% will accept. Those demanding better are overruled by those who don’t care.
Recipe for a pretty bleak future.
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Re:Unprofessional photographer (Score:4, Insightful)
Copyright is written by, and for the benefit of, the huge corporations who have the financial might to use the courts to ensure things stay that way.
If Stephanie and her ilk get some small benefit, well, that's nice, but it is not really important.
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Copyright works. She didn't lose her copyright; she assigned certain rights to the photo to Instagram under there terms of use. I wouldn't expect most casual users to read the terms in detail but apparently the photographer is a professional. She should certainly know better and if not before then certainly now.
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Being a professional photographer is not the same thing as being smart enough to read and comprehend and being critically aware of the conditions of a service that you've probably taken for granted for many years.
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It may surprise you to learn that there are such things as laws.
In this case, Instagram is bound by their terms of service... and so is the photographer. Who, unfortunately, did not sufficiently read and understand those terms.
And no, if they "had ownership", you wouldn't necessarily have to pay them. That would depend entirely on what they wanted to do with that ownership.
But as it stands, they don't have ownership. They have (per their terms of service) a limited license, not owners
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I'm actually surprised that everyone isn't doing watermarks like tis to begin with, if they have any value on their images for sale that they also post on Instagram.
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But that law changed.
Usually the claim was a small marking somewhere: "Copyright Blahblah Corporation 1998". The claim had to occur on or in close proximity to the actual work.
And after boatloads of cases like this one, I say that was still the better system.
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Exactly. There's not necessarily any inconsistency here with other rulings in the district because the terms of use may have allowed this reuse in one instance but not the other.
Re:Unprofessional photographer (Score:4, Interesting)
This decision does rests on licensing, not the stupid "where it's stored" ruling.
Copyright law is largely based on license rights, and doesn't depend (in any other situation of which I am aware) on location. Where the picture is stored should have just about zero meaningful effect.
If I give you permission (license) to display my copyrighted work, then you have permission to show my work. It doesn't matter where you store it.
If I don't, then I don't. It still doesn't matter where you store it.
Re: Unprofessional photographer (Score:3)
Just a note: location DOES matter if it's a country not under the Berne Convention, or one who is operating with special status granted by the WTO.
For example, once upon a time the best LEGAL way to purchase music was from Russia over the Internet.
Under Russian copyright law, all works published in Russia were under the control of their version of the RIAA/MPAA, which was a quasi-governmental entity (and probably funneled money into the pockets of oligarchs).
That organization decided that Internet downloads
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Re:Unprofessional photographer (Score:4, Insightful)
But the terms state that the user grants Instagram a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use their content”." Pretty clear to me.
It's clear that Instagram have a transferable sub-licensable license to use this content, sure.
But there remain critical things that aren't clear: (1) Does mashable's use, embedding an instagram post, count as a use by mashable of the content? or was it a use by Instagram of the content? (2) If it was a use by mashable, does Instagram's embedding API constitute an automatic sub-license to everyone who uses that API to embed? Or did Mashable need to obtain that sub-license from Instagram via some other means?
Re:Unprofessional photographer (Score:5, Informative)
That's what transferable and sub-licensable means. You're giving Instagram the right to re-distribute your work as they see fit. Mashable doesn't have to obtain an explicit sub-license if Instagram says it's OK to reproduce Instagram posts in whole (which apparently they do considering how many of them I see everywhere).
The pros who do post photos/video on Instagram (and services with similar licensing terms) either use a reduced resolution version of their pic, shortened version of the video, or place an obvious watermark over it.
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It's pretty obviously 2, but only by default when no explicit license negotiation has taken place.
However, in this case, the photographer should win as Mashable contacted them beforehand and Mashable knew the photographer did not consent to such use and terms amounting to a $50 payment. It can be reasonably extrapolated that they would not consent to the same use for $0.
Unless Mashable explicitly licensed the photo from Instagram, I'd say Mashable should be on the hook for the $50 they initially offered. A
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Licenses aren't an exclusive-or situation. Mashable can use any license available to them. If the photographer doesn't grant them a license directly, they're still free to use the license they got from Instagram. The photographer can't prevent that, since they granted Instagram the right to sublicense anything they posted to Instagram, except by revoking Instagram's rights (which would require removing the photograph from Instagram, as without granting Instagram those rights you're violating Instagram's ter
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I disagree. It's hard to find Mashable guilty for embedding her Instagram post rather than actually copying her picture. Links like that are how the internet is supposed to work.
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Links: Yes.
"Links like that": No.
Yes, the internet is supposed to work on links. Links. Links that no page uses any longer as they sent users away from their page.
The internet was not designed to work as a bunch of iframes.
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Instagram should let users decide to disable embedding if they want to.
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It's a curious one. My initial though was that by offering the API, I think it's reasonable to say Instagram provides consent.
But this is someone else's IP, and they're "sublicencing". Is mere consent enough here?
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This reminds me when SMBC, the cartoon, got really mad because someone embedded a cartoon. In that case the software SMBC was using specifically allowed and encouraged p
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If you upload to a public service - make sure that you upload with a distinct watermark and not the highest quality.
At least if you expect to make a profit from your pictures.
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Preferably one that says "Bag of sweets and cheeky smile, Fuckerberg's a pedophile!"
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That was her first mistake, no 'professional photographer' would do that, because they would have read the fucking terms of use.
False. Most professional photographers have Instagram accounts where they upload and show selections of their work. Incidentally Instagram's ToS give Instagram the right to use the work. This case in question is about a 3rd party.
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Isn't that non-exclusive blah-blah-blah clause there to prevent someone from uploading their content and immediately suing anyone that downloads it?
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Cue angry conservatives focusing on her chosen subject matter rather than the ruling, or using the subject matter to justify the ruling.
Yeah posting photographs online does not grant corporations commercial use of your private work.
-A non-outraged straight white male.
Thanks for clearing that up. I assume you will be educating the Federal District Court judge who got it wrong.
news? (Score:2)
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Why not? It involves a ruling on the legality of copyright on embedded images. That is tech news, since this could set a new precedent in case law regarding online copyrights.
lol (Score:2)
Q) What do you call a lawyer with an IQ of ninety?
A)"Your honor."
Republicans (Score:1)
Re:Republicans (Score:4, Informative)
What does that have to do with this story?
As I recall, Kimba Wood was nominated by Bill Clinton for Attorney General (she had to withdraw from consideration after it became clear she had made use of an illegal immigrant as a nanny). She's by no stretch of the imagination a "Republican" judge.
Are you referring to Ms. Sinclair? Given her chosen subject matter, it seems highly unlikely she's a Republican.
Or maybe you are contending that Mashable is somehow a Republican outlet?
There's a simple solution (Score:5, Insightful)
If all they did was embed / link to her Instagram post and she doesn't want it included in the article, all she needs to do is delete that post.
And maybe learn what Instagram is and how it works, for future reference.
Re:There's a simple solution (Score:4, Insightful)
Agree completely. It's within her power to remove the post.
I'd also argue that the Slashdot title is quite inflammatory, because she didn't give away *exclusive* licensing rights by posting on Instagram. She gave Instagram (and hence anybody embedding it) "non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license".
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She did give up exclusive rights by allowing Instagram to publish it (i.e., after granting Instagram a license, she was / is no longer the only person or entity allowed to publish it). That's what "exclusive rights" means (being the only one allowed to publish it). Likewise, Instagram does not have exclusive rights, because they continue to allow her to publish the image wherever she wants.
The only arguable thing here is, if she deletes the post, can Instagram still use the image, or does deletion revoke th
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Yeah I agree in principle, but at the same time it's nice the case brought to light the attempts by the crappier media to devalue other people's work. $50 for a photo is laughable, especially when reputable news organisations pay photographers a salary.
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If all they did was embed / link to her Instagram post and she doesn't want it included in the article, all she needs to do is delete that post.
Based on the court decision that won't be enough. People are so focused on the stupidity on the part of the photographer that they are completely missing why this is news: The court ruled that Instagram now have the right to decide what to do with her photo. That is significant, because if true this isn't a case of simply embedding an Instagram post (and the summary specifically mentions that was the way the court decision was expected to go).
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The court ruled that the photographer is bound by Instagram ToS, and that the ToS gives Instagram those rights. This is a standard contract case more than anything to do with copyright.
Headline is misleading (Score:4, Insightful)
She din't give up any rights - the company in question simply re-shared what she had posted on instagram, including the rest of the instagram details.
If you had just copied the picture and posted it, even with some credit, it would be entirely different.
They are using Instagram the way it was designed to be used, and by extension when she posted to that platform her image was subject to the same image re-posting countless others have already done.
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Exactly. How can you blame someone of copyright infringement if they didn't copy anything in the first place?
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She din't give up any rights
Actually the headline is about the strange court decision. As stupid as the case was what is even more bizarre is the legal conclusion the ruling was based on. The court actually ruled that she did give up the rights to her photograph.
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You should stop being a moron, but I doubt you're capable. The very summary you imply you read states that the Instagram ToS requires posters to grant a license to Instagram. This case is about a photographer who is as illiterate as you.
She got paid in exposure (Score:2)
Loony Tunes (Score:1, Troll)
SOP on all social media sites (Score:2)
This is standard operating procedure on all popular social media sites. When you upload anything or post anything to Twitter, Instagram, Facebook, etc... you basically abdicate all copyright claim to that post/image. It's not the fault of the site that the users don't read the TOS.
Posting on social media (Score:2)
While not giving up rights, if you post something on social media, your goal is to get as many people as possible to see that post.
Fine outcome to me (Score:2)
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You might want to read the article. Moron.
Read your EULA (Score:2)
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Bimbo Judge Gets It Wrong (Score:2)
"Wood writes that because Sinclair "uploaded the Photograph to Instagram and designated it as 'public,' she agreed to allow Mashable, as Instagram’s sublicensee, to embed the Photograph in its website."
"James Bartolomei, attorney for Si
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Bimbo slashdot user gets it wrong.
We've been though this before with "terms of use" - just because you click "Yes" does not mean you agree to them. Particularly since you need to in order to use the service or software. This has been litigated in court before with software. When users click "agree" to "terms of use" agreements in order to install software.
Yes, we have. And yes it does mean you agree to them. When using a service. Clickwrap licenses have been overturned only in extremely specific circumstances, which do not apply here. Specifically when installing purchased software, which is not what happened here. Terms of service for online services, especially online services the user does not pay for, are robust and will hold up on appeal. Disney will see to it. Or did you think clicking "agree" on your Disney+ se
Public, publicity and publication (Score:2)
Three steps toward an open license to sharing in the domain of public good.
Otherwise known as stealing, using found footage, image or otherwise is clearly becoming finders keepers whether intention-al or un-intentional. For the Internet to provide and foster growth, utility and value - at the very least, attribution is the minimal requirement missing when stealing an image.
The " professional" who spent her money, time and expertise capturing the photo, she should retain no less when it is taken, copied or