In Brief: Third party websites can imbed photos and avoid copyright infringement.

Here’s What Happened:  

In 2007, the Ninth Circuit Court of Appeals held that imbedding thumbnails of photos on a website is not copyright infringement. (Perfect 10 v. Amazon, 508 F.3d 1146 (9th Cir. 2007). The North Circuit reasoned that embedding an image doesn’t copy it. Instead embedding sends the viewer back to the website showing the image. This is called the Server Test. The US Supreme Court tested the limits of Perfect 10 holding that unlike embedded photos, streaming services perform works and need permission or face copyright infringement. (Am. Broad. Companies, Inc. v. Aereo, Inc., 573 U.S. 431, 134 S. Ct. 2498, 189 L. Ed. 2d 476 (2014). So Ninth Circuit revisited its decision in Perfect 10.

Instagram is a popular social media platform that allows users to share photos and contents with their followers. Instagram's infrastructure also allows third-party websites to “embed” public Instagram posts.

Alexis Hunley and Mathew Scott Brauer brought a class action suit against Instagram for copyright infringement under the theory of secondary liability. In other words, they didn’t say that Instagram directly infringed on their copyright; instead it paved the way for someone else to do it. On June 3, 2020, during the Black Lives Matter protests, BuzzFeed News published an article titled “17 Powerful Pictures of the Protests through the Eyes of Black Photographers.” As part of that article, BuzzFeed embedded one of Alex’s Instagram posts. The embedded image showed Alex’s Instagram username (called her “handle”) followed by Alex’s copyrighted photograph, which featured the hands of a protestor juxtaposed with a line of police officer. Similarly, Time published an article on January 31, 2016, titled “These Photographers Are Covering the Presidential Campaign on Instagram.” As part of that article, Time embedded one of Matthew’s Instagram posts, featuring a copyrighted photo of candidate Hillary Clinton.

The district court granted the defendant’s motion to dismiss.

On appeal to the Ninth Circuit, the Court relied on its Perfect 10 decision and the Server Test. The embedded Instagram posts of Alex and Matthew’s photos were no different that the plaintiff’s photos in Perfect 10. By posting photographs to a public Instagram profile, the plaintiffs stored copies of those images on the Instagram server. The third-party news sites Buzzfeed and Time then embedded the content hosted on Instagram's servers and displayed it alongside original newswriting. These sites did not store copies of the underlying copyrighted photographs and were "not guilty of direct infringement". In the absence of direct infringement, Instagram could not be held secondarily liable.

The Ninth Circuit affirmed the dismissal of Alex and Matthew’s complaint.

Why You Should Know This:  Sometimes it’s hard to know what’s permitted and what isn’t when using someone else’s content. Certainly uploading a copy and displaying it without permission crosses the line. But embedding an image and not saving it on the website is still ok.

Case Information:  Hunley v. Instagram, LLC, 73 F.4th 1060 (9th Cir. 2023)

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