Instagram Wins Big in Copyright Dispute Over Embedded Content

Instagram’s recent copyright victory before the Ninth Circuit will significantly impact content creators and others who rely on “embedded” images and photographs…

Instagram’s recent copyright victory before the Ninth Circuit will significantly impact content creators and others who rely on “embedded” images and photographs.  The Ninth Circuit ultimately held that Instagram could not be liable for secondary copyright infringement because, among other things, embedding photographs did not result in “displaying a copy” of the underlying images under the “Server Test” established in Perfect 10 v. Amazon, 508 F.3d 1146 (9th Cir. 2007).

Quick Primer on Embedded Images

Instagram’s infrastructure allows third-party websites to “embed” (or insert) Instagram posts for display directly onto their websites. As the Ninth Circuit explained: 

The embedding website directs the user’s own browser to the Instagram account and the Instagram content appears as part of the embedding website’s content. The embedding website appears to the user to have included the copyrighted material in its content. In reality, the embedding website has directed the reader’s browser to retrieve the public Instagram account and juxtapose it on the embedding website.

Notably, the Ninth Circuit explained that the embedding website did not store a copy of the underlying image on their servers.  Instead, embedding of images directs the user’s browser to Instagram, which allows multiple websites to incorporate content stored on a single server simultaneously.

Copyright Infringement Allegations

In Hunley v. Instagram, LLC, Photographer Alexis Hunley and Matthew Scott Brauer (collectively “Hunley” or the “Plaintiffs”) sued Instagram for copyright infringement. The Plaintiffs alleged that Instagram violated their exclusive display right by permitting third-party sites to embed the photographers’ Instagram content.

According to the complaint, on June 3, 2020, BuzzFeed News published an article entitled “17 Powerful Pictures Of The Protests Through The Eyes of Black Photographers,” which embedded one of Hunley’s Instagram posts into the article. BuzzFeed neither obtained a license from Hunley to display the photo in the article or sought authorization directly from Instagram. Notably, BuzzFeed’s use did not create a copy or store the underlying photo on its servers, but rather used Instagram’s HTML feature to embed the Instagram post containing the photo.  Hunley’s Instagram post thus appeared on BuzzFeed’s website alongside BuzzFeed’s own content. Similarly, Time published an article on January 31, 2016, entitled “These Photographers Are Covering the Presidential Campaign on Instagram” and embedded one of Brauer’s Instagram posts into the article featuring a copyrighted photo of candidate Hillary Clinton.

Hunley and Brauer filed a class action suit against Instagram on behalf of other copyright owners whose work was “caused to be displayed via Instagram’s embedding tool on a third party website without the copyright owner’s consent.” The lawsuit was premised on a theory of secondary liability, alleging that Instagram’s embedding tool violated their exclusive display right under the Copyright Act by enabling third-party websites such as BuzzFeed and Time to display copyrighted photos posted to Instagram.

The district court concluded that the Ninth Circuit’s decision in Perfect 10 precluded relief, citing that, in order to violate the public display right under 17 U.S.C. § 101, infringers must display “copies” of the copyrighted work. “[BuzzFeed and Time] [did] not violate Instagram users’ exclusive display rights,” the district court explained. “Because they do not store the images and videos, they do not ‘fix’ the copyrighted work in any ‘tangible medium of expression.’ Therefore, when they embed the images and videos, they do not display ‘copies’ of the copyrighted work.”

Application of the Server Test

The Ninth Circuit agreed with the district court’s analysis, holding that, under Perfect 10, Instagram could not be liable for secondary infringement because embedding a photo did not, as a matter of law, “display a copy” of the underlying image.

The Ninth Circuit reasoned that “By posting photographs to her public Instagram profile, Hunley stored a copy of those images on Instagram’s servers. By displaying Hunley’s images, Instagram did not directly infringe Hunley’s exclusive display right because Instagram had a nonexclusive sublicense to display these photos.” The Ninth Circuit further noted that “because BuzzFeed and Time embedded – but did not store – the underlying copyrighted photographs, they are not guilty of direct infringement. Without direct infringement, Hunley cannot prevail on any theory of secondary liability.”  

The Ninth Circuit further held that its decision in Perfect 10 did not restrict the application of the Server Test to a specific type of website, such as search engine. “[I]n articulating the Server Test, we did not rely on the unique context of a search engine,” the panel explained. “Our holding relied on the ‘plain language’ of the Copyright Act and our own precedent describing when a copy is ‘fixed’ in a tangible medium of expression.”  The Ninth Circuit also emphasized that the application of the Server Test depends on the method used for displaying a photo—not the context in which the photo is displayed, which in both cases was embedding.

Key Takeaway

While the Ninth Circuit’s decision’s is significant, sister courts may not follow the same reasoning or analysis when confronted with embedded content. Notably, Judge Jed Rakoff of the U.S. District Court for the Southern District of New York declined to adopt the Server Test in Nicklen v. Sinclair Broadcasting Group after finding that the Ninth Circuit’s test is “contrary to the text and legislative history of the Copyright Act, [which] defines ‘to display’ as ‘to show a copy of’ a work, not ‘to make and then show a copy of the copyrighted work.’” 

Indeed, this complex area of law continues to evolve, so we encourage all creatives, publishers, and others to consult with experienced IP counsel when contemplating the use of embedded images.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Albert J. Soler, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.