By Teghan O'COnnell
In 2018, Catherine Alexander sued Take-Two Interactive for violating her copyright of WWE wrestler Randy Orton’s tattoos. Alexander is Orton’s tattoo artist and holds a copyright for the wrestler’s distinct wrist-to-shoulder tattoos. When Take Two Interactive published their video game “WWE 2K,” Randy Orton was depicted with his tattoos. Alexander sued for infringement and won a settlement of $3,750 in damages. During the lawsuit, Alexander made it clear that she has never granted permission to WWE to copy, duplicate, or otherwise produce the designs. [1]
As an image and video sharing platform, Instagram has created a copyright infringement free-for-all. Like Alexander’s issue, artists are seeing their work copied without consent. A large part of the infringement stems from “embedding” posts in outside sources. News agencies Newsweek and Mashable often embed Instagram posts within their articles, skirting any copyright issues by embedding the original post. Content creators are not happy about embedding, however the first time the issue was brought in court the decision was in favor of the embedders. [2]
In 2016, the media publisher Mashable shared an article titled “10 female photojournalists with their lenses on social justice.” In the article, Mashable embedded an Instagram post from photographer Stephanie Sinclair after she refused to license the photo for the article. Sinclair then sued the publisher for copyright infringement. Initially, the US District Court for the Southern District of New York decided to throw the case out on the fact that Instagram’s Platform Policy allows the company to grant sub-licenses for posted content. However, when Instagram released a statement that they do not grant sub-licenses to embedders, Sinclair filed a motion for reconsideration. [3] Unfortunately, the case was still dismissed. [4]
The statement from Instagram and subsequent re-review of Sinclair’s complaint were cited in another lawsuit involving embedded posts. Photographer Elliot McGucken filed a copyright infringement lawsuit against the news company Newsweek after they embedded one of his photographs from Instagram in an article. [5] When McGucken sued, the question came down to whether Newsweek was displaying the photo by embedding the post or whether Newsweek had a sub-license to share the photo granted by Instagram. In response, Instagram shared that they never granted a sub-license to any embedders. Both parties filed for summary judgement, which was denied. [6]
Embedding is just one aspect of the love-hate relationship between artists and social media. Though copyright infringement is rampant on Instagram, the app also serves as a great way for artists to gain recognition. The issue with posting on Instagram is that once you do, you grant Instagram a non-exclusive, royalty free license for that post until it is removed from their database. Posting also gives Instagram the ability to sub-license the post and transfer ownership, as well as create derivative works of your content. This license lasts as long as the content is on Instagram or stored in their servers, which don’t delete your content for up to 90 days after you remove it from the app. [7] For businesses and creators using Instagram, it is important to know what you are agreeing to when you agree to an app’s terms and conditions.
[1] BBC newsbeat, WWE: Randy Orton’s tattoo artist wins case over designs in game, BBC (Oct. 4, 2022), https://www.bbc.com/news/newsbeat-63131467
[2] Ann Potter Gleason, Copyright Owners’ Love/Hate Relationship With TikTok and Instagram Raises Legal Issues, The National Law Review (Aug. 28, 2022), https://natlawreview.com/article/copyright-owners-lovehate-relationship-tiktok-and-instagram-raises-legal-issues
[3] DL Cade, Court Reopens Photographer’s Lawsuit Against Mashable Over Instagram Embedding, PetaPixel (Jun. 24, 2020), https://petapixel.com/2020/06/24/court-reopens-photographers-lawsuit-against-mashable-over-instagram-embedding/
[4] Sinclair v. Ziff Davis, LLC, 454 F. Supp. 3d 342 (S.D.N.Y. 2020)
[5] Loeb and Loeb LLP, McGucken v. Newsweek, LLC, Loeb and Loeb LLP (Mar. 21, 2022), https://www.loeb.com/en/insights/publications/2022/04/mcgucken-v-newsweek-llc
[6] McGucken v. Newsweek LLC et al, No. 1:2019cv09617 - Document 83 (S.D.N.Y. 2022)
[7] Copyrightlaws.com, Instagram And Copyright Terms of Use, Copyrightlaws.com (Aug. 10, 2022), https://www.copyrightlaws.com/instagram-and-copyright/