Sinclair v. Ziff Davis et al.: Read the Platform’s Terms of Use Before You Post Content to Social Media

The Southern District of New York’s April 13, 2020 decision in Sinclair v. Ziff Davis, LLC, No. 18-CV-790 (KMW), 2020 WL 1847841 (S.D.N.Y. Apr. 13, 2020) provides some of that guidance, albeit in very limited fashion. Specifically, in Sinclair, the Court dismissed plaintiff photographer Sinclair’s copyright infringement claim against defendant Mashable, finding Mashable had used plaintiff Sinclair’s photograph pursuant to a valid sublicense from Instagram. According to the Court, that sublicensable license had been granted to Instagram by way of Instagram’s series of integrated user policies, which Sinclair had agreed to and which delineated the license’s scope and the mechanisms by which to limit that scope.

Embedding Content Posted to Social Media

The contested use in Sinclair v. Ziff Davis was the display of plaintiff Stephanie Sinclair’s photograph in an article on defendant Mashable, Inc.’s website, mashable.com. Specifically, as shown below, Mashable used Instagram’s API to embed in its article—titled “10 female photojournalists with their lenses on social justice”—a photograph that Sinclair had previously posted to her public Instagram account (the “Photograph”).[1]
 

See Amended Complaint, Ex. B (ECF No. 15-2).

Embedding is a feature offered by many social media platforms,[2] and allows a third party to incorporate content posted on that social media platform (and hosted on that social media platform’s server) onto its own webpage. This is done by adding the social media post’s embed code into the HTML instructions underlying the third party webpage. When an internet user visits that third-party webpage, the embed code directs the user’s internet browser to the servers of the social media platform’s server where the original content is stored, causing the content to appear on the user’s screen as if it had been posted on the webpage. Importantly, however, the content resides and remains on the social media platform’s server despite being “displayed” on the third-party webpage—embedding obviates the need to generate another copy of the original work.[3]

Previously, it had been argued that embedding copyrighted content residing on another’s server effectively immunized a third party from copyright infringement claims under what is known as the “Server Rule,” because an additional copy of the work was never generated and stored on the third party website’s servers.[4] But, in 2018, the Southern District of New York in Goldman v. Breitbart News Network LLC et al., 302 F. Supp. 3d 585 (S.D.N.Y. 2018), found the reasoning behind the Server Rule unpersuasive as applied to embedding a Twitter post that contained a copyrighted image.[5] The Goldman court’s decision was, however, issued on limited grounds, leaving open “a number as of yet unresolved strong defenses to liability separate from this issue.” Id. at 596 (“In this case, there are genuine questions about whether plaintiff effectively released his image into the public domain when he posted it to his Snapchat account. Indeed, in many cases there are likely to be factual questions as to licensing and authorization.”). While the parties in Goldman settled before ever getting to the merits of those defenses, Sinclair provides some insight as to how those defenses may have played out.

The Sinclair Court’s Evaluation of Instagram’s Policies

Social media platforms that make their users’ content available for embedding by others also often provide controls to restrict or prevent embedding of that content, including by allowing users to designate the content (or their accounts) as private.[6] By failing to utilize those controls, users risk granting sublicensable licenses to the social media platforms on which they post, defined by the Terms of Service (and accompanying policies) to which they have agreed. This was the main point of contention in Sinclair—specifically, whether Mashable’s actions were permissible by virtue of a valid sublicense received from Instagram.

Mashable moved to dismiss Sinclair’s copyright infringement claim in its entirety, arguing that Sinclair had granted Instagram the right to sublicense the Photograph by uploading it to a public Instagram account, and that Instagram then exercised that right by granting Mashable a sublicense to display the Photograph. During the relevant time period of the alleged infringement, Instagram governed its arrangements with its users through an integrated set of policies to which those users agreed to be bound: Instagram’s Terms of Use (“TOU”), Privacy Policy, and Platform Policy. There are, however, two things to note with respect to the Sinclair decision:

1. As recognized by the Sinclair court, Instagram’s policies “have been updated since the infringement alleged.” See 2020 WL 1847841, at *2, n. 2. In that regard, the Court did not evaluate Instagram’s updated policies; and
2. Because only the Platform Policy had been annexed to Sinclair’s complaint, the Court took “judicial notice of Instagram’s contemporaneous Terms of Use and Privacy Policy.” Id. The Court stated these were “publicly available online,” but did not cite where it was retrieving them from. In its motion to dismiss, Mashable had only provided hyperlinks to the TOU and Privacy Policy (ECF No. 19 at 11, n. 7), but those hyperlinks no longer lead to the policies at issue in the case.[7]

Notwithstanding the murkiness of the decision in this regard, the TOU and Privacy Policy cited to in Mashable’s motion (both stated as “last updated on January 19, 2013”) and purportedly evaluated by the Court can be located on Wayback Machine’s Internet Archive for purposes of discussion in this article.[8]

As an initial matter, the Court found that, by creating an Instagram account, Sinclair had agreed to be bound by Instagram’s policies. See 2020 WL 1847841, at *2. Next, the Court found that the TOU established that Sinclair granted Instagram a sublicensable right of use, the scope of which was “detailed fully in Instagram’s Platform Policy and Privacy Policy.” See id. at *3. Specifically, the Court referenced certain provisions from each of the three policies as collectively authorizing Mashable’s conduct.

As to the TOU, the Court found the following provision granted Instagram a non-exclusive, transferable, sublicensable license (subject to the terms of the Privacy Policy) from Sinclair to use her content.

Id. (citing Terms of Use, Rights § 1). The Court then found that the following provisions from the Privacy Policy allowed users to designate their accounts as either public or private, and that content designated as public (like the Photograph) is “searchable by the public and subject to use by others via Instagram’s API.”

Id. (citing Privacy Policy, Parties with whom we may share your User Content §§ 1, 2). Finally, the Court pointed to the Platform Policy, which stated that Instagram’s API enabled its users (like Mashable) to embed publicly posted content to their websites.

Id. (citing Platform Policy, Preamble). Thus, because Sinclair had 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.” Id.

Notably, because the Court found that Mashable had obtained a valid license to display the Photograph, it stated it “need not reach” the question addressed in Goldman of whether embedding an image infringes a copyright holder’s exclusive right to display. Id. at *4, n. 3. The Court also went on to reject a number of Sinclair’s policy-based arguments with policy-based explanations of its own. First, Sinclair argued Instagram’s policies were contradictory in that they mandated that users respect the intellectual property rights of others when uploading content, while simultaneously also granting those users a right to share other users’ public posts containing copyrighted material, to which the court responded:

Plaintiff misses the distinction between a user’s initial uploading of content to Instagram, and a user’s subsequent sharing of content that has already been uploaded to Instagram. In the former scenario, a user may not upload content to Instagram if doing so would violate the intellectual property rights of another person. In the latter, users must comply with Instagram’s terms governing the sharing of content; however, there is no concern about copyright violation, because the user who initially uploaded the content has already granted Instagram the authority to sublicense the use of “public” content to users who share it. These requirements pose no contradiction, and enable copyright holders to avoid unlicensed sharing of their work by choosing not to publicly post their copyrighted material on Instagram.

Id. at *4. Second, Sinclair stressed the unfairness of the decision, in that it forces photographers to choose between granting Instagram the right to sublicense their photographs or to remain in private mode on one of the most popular modes of sharing photographs in the world. Recognizing Sinclair’s dilemma as a “real one,” the Court nonetheless found that Sinclair had “made her choice” by posting the Photograph publicly, and that it was not the Court’s role to release her from the agreement she had entered into with Instagram. Id.

Sinclair Makes One Thing Clear—Read the Fine Print

Because the Sinclair court’s decision focused on only one social media platform, it doesn’t serve to provide definitive guidance across the social media space as a whole on permitted uses of copyrighted works.[9] And, further, because the decision hinged on policies purportedly no longer in force on Instagram, its effects on even Instagram conduct are also unclear given the scope of Instagram’s updated policies must first be determined. For example, Instagram’s current “Platform Policy,” which purportedly replaced the Privacy Policy and therefore the provisions the Sinclair court relied upon therein, includes provisions regarding third party use of content that were not evaluated. See, e.g., Data Policy, Instagram, (last visited April 21, 2020) (“You should consider who you choose to share with, because people who can see your activity on our Products can choose to share it with others on and off our Products, including people and businesses outside the audience you shared with. For example, when you share a post or send a message to specific friends or accounts, they can download, screenshot, or reshare that content to others across or off our Products… .”).

If there’s one thing the Sinclair decision makes clear, it’s this—users posting content to social media platforms, as well as those seeking to use third party content already posted, must thoroughly consider and evaluate the Terms of Use of the social media platform they are using, as it appears the scope of those terms will serve as crucial from both an offensive and defensive perspective.

[1] Exhibits attached to Sinclair’s complaint showed that, before publishing the article, one of Mashable’s employees had emailed Sinclair offering her $50 dollars for a license to post the Photograph. See Amended Complaint, Ex. A (ECF No. 15-1). Sinclair alleged she never accepted this offer. See Amended Complaint, ¶ 23 (ECF No. 15).
[2] For example, Twitter provides an “Embed Tweet” option that allows third parties to embed public Tweets onto their websites. How to embed a Tweet on your website or blog, Twitter, (last visited April 21, 2020). YouTube, Facebook, and Instagram also provide embedding features. See Embed videos & playlists, YouTube Help, (last visited April 21, 2020) (“You can add a YouTube video or playlist to a website or blog by embedding it.”); Embedded Posts, Facebook for Developers, (last visited April 21, 2020) (“Embedded Posts are a simple way to put public posts - by a Page or a person on Facebook - into the content of your web site or web page. Only public posts from Facebook Pages and profiles can be embedded.”); Embedding Instagram Posts, Facebook for Developers, (last visited April 21, 2020). 
[3] Outside of embedding, other ways to incorporate the Photograph into an online article could have been, for example: (i) screenshotting Sinclair’s Instagram post and uploading that screenshot, or (ii) providing the hyperlink to Sinclair’s Instagram post. These methods of disseminating social media content are not explained herein.
[4] The Server Rule was promulgated by the Ninth Circuit in Perfect 10 v. Amazon, 508 F. 3d 1146 (9th Cir. 2007), and effectively stands for the proposition that the inclusion on a third party website of copyrighted content residing on another server by way by embedding or in-line framing does not infringe a copyright owner’s public performance or display rights unless that content has also been copied onto the third party website’s server.
[5] Specifically, the Goldman court found that “when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right.” 302 F. Supp. 3d at 586. For more details about this case, see Think Before You Link: Embedding Twitter Photographs Can Be Infringement, Judge Rules, Arent Fox.
[6] See, e.g., How to embed a Tweet on your website or blog, Twitter, (last visited April 21, 2020) (“Embed code is not available for Tweets from people who choose to protect their Tweets.”); Change video privacy settings, YouTube Help, (last visited April 21, 2020) (“Public videos can be seen by anyone at YouTube. They can also be shared with anyone using YouTube… . Private videos and playlists can only be seen by you and the people you choose.”).
[7] For example, Mashable cited the URL as the Privacy Policy, which now resolves to Instagram’s “Data Policy.” Indeed, it appears Instagram no longer has a policy titled “Privacy Policy.” 
[8]See https://web.archive.org/web/20180502005327/https://help.instagram.com/155833707900388/ (“Privacy Policy”)
https://web.archive.org/web/20180502160425/https://help.instagram.com/478745558852511/  (“TOU”).
[9] As an example, in Agence France Presse v. Morel, 934 F. Supp. 2d 547 (S.D.N.Y. 2013), the Southern District of New York rejected the defendants’ argument that by posting the photographs at issue on Twitter, the plaintiff granted them a license– despite Mashable’s similar argument here, that case was not even mentioned by the Sinclair court.