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Instagram’s New Marketing Copyright Headache

Instagram Sides With Photographers Over Embedded Site Posts

Leveraging user-generated content (UGC) in social media is a popular and highly effective communications tactic.

It adds authenticity, feels trustworthy and is a nice soft sell.

However, due to a flurry of recent complaints from content creators, and a few suspect lawsuits in the US, Instagram has moved to dampen some of its burgeoning copyright issues.

Instagram issued a statement earlier in June, claiming that websites may now require a creator's permission before they can embed their images.

This follows a legal ruling which went in Mashable's favour, back in April, whereby Mashable embedded a photographers imagery on its site without permission. Fearing an exodus of photographers from the platform, no doubt, it is this copyright window that Instagram has recently moved to shutter.

Thanks Mashable…

Back in 2016, Mashable featured photographer Stephanie Sinclair in an article, embedding her images in the write-up after it had previously failed to license the image directly.

She later sued parent company Ziff Davis for using Instagram embedding as a workaround.

However, in April, a New York district court determined that Stephanie Sinclair offered a "valid sublicense" to use the photograph when she posted it publicly on Instagram.

Within Instagram's terms of service, users provide a copyright license to Instagram every time they upload a photo.

Therefore, if an image is posted publicly on Instagram, it also offers embedding as an option, which is what the judge determined amounted effectively to a sublicense to display the picture.

"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," Judge Kimba Wood wrote.

Following the Mashable suit, Newsweek tried a similar tack in the US which resulted in a legal defeat for Newsweek last week.

A different New York judge ruled that the magazine couldn't dismiss a photographer's complaint based on Instagram's terms of service.

Now, Instagram is seemingly clearing up the situation once and for all. Sort of.

Leveraging Instagram Content On Brand Websites

Instagram now states that its terms of service do not grant websites a sublicense to embed other people's posts. 

Ars Technica reported last week that Instagram's policies "require third parties to have the necessary rights from applicable rights holders," according to an Instagram spokesperson. "This includes ensuring they have a license to share this content, if a license is required by law."

Simply put, before you embed someone's Instagram post on your website, you may need to ask the poster for a separate license to the images in the post. If you don't, you could be subject to a copyright lawsuit.

"Instagram tells Ars that it's exploring the possibility of giving users more control over photograph embedding. Right now, Instagram users can block embedding of their posts by switching their Instagram account to private.

But that will also prevent users on the Instagram platform from seeing their content, too, which can be a career liability for professional photographers. Right now, Instagram offers no option to make content public inside the Instagram app while disabling embedding on external websites."

The Newsweek story is still playing out, so embedding may or not become a bigger issue for brands that leverage UGC or publishers featuring citizen journalism.

Although, regardless of what that ruling becomes, Instagram could well make any ruling moot by tweaking its terms of service.

In the meantime, to play it safe, just ask for permission before using a photo from Instagram. A standard credit and consent request via DM should be fine. If it's a no. It's a no.

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