Stephanie Sinclair, a professional photographer, has brought copyright infringement lawsuit against Mashable and its parent company Ziff Davis, alleging infringement of copyright when Mashable posted one of her copyrighted photographs on its website. She maintains publicly- searchable website to showcase her photographs to potential customers and also maintains an account on Instagram. She has posted one of her photograph to her Instagram account viewable by anyone.
Mashable is a media and entertainment platform that operates self-titled website. On March 11, 2016, an employee of Mashable contacted Plaintiff via email and sought to license the Photograph for use in an article about female photographers, to be published on Mashable’s website. Mashable offered Plaintiff $50 for licensing rights to the Photograph. Plaintiff did not accept Mashable’s offer. On March 16, 2016, Mashable published an article about female photographers on its website, which included a copy of the Photograph.
Mashable used a technical process called “embedding” to incorporate the Photograph into the Article. Embedding allows a website coder to incorporate content, such as an image, that is located on a third-party’s server, into the coder’s website. When an individual visits a website that includes an “embed code,” the user’s internet browser is directed to retrieve the embedded content from the third-party server and display it on the website.
As a result of this process, the user sees the embedded content on the website, even though the content is actually hosted on a third-party’s server, rather than on the server that hosts the website. Mashable embedded in its Article the copy of the Photograph that Plaintiff had previously uploaded to the server of Instagram.
Instagram uses a service called “application programming interface,” or “API,” to enable users to access and share content posted by other users whose accounts are set to “public” mode. Pursuant to certain Instagram policies, users can use the API to embed Instagram posts in their websites.
That is exactly what happened here: Mashable used the API to embed, in the Article, the copy of the Photograph that Plaintiff previously posted to her public Instagram account. On or about January 19, 2018, Plaintiff demanded that Defendants take down the copy of the Photograph from the Article, and compensate Plaintiff for infringing on her copyright. Defendants refused to do so. Plaintiff has filed a suit.
Defendants argued that Mashable used the Photograph pursuant to a valid sublicense from Instagram, so its use of the Photograph does not infringe Plaintiff’s copyright. Plaintiff granted Instagram the right to sublicense the Photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph. By creating an Instagram account, Plaintiff agreed to Instagram’s Terms of Use. Plaintiff confirmed that she is bound by the Terms of Use.
Thus, because Plaintiff 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. First, Plaintiff argues that Mashable’s failure to obtain a license to use the Photograph directly from Plaintiff means that Mashable should not be able to obtain a sublicense from Instagram to use the Photograph.
Plaintiff’s right to grant a license directly to Mashable, and Instagram’s right, as Plaintiff’s licensee, to grant a sublicense to Mashable, operate independently. Mashable was within its rights to seek a sublicense from Instagram when Mashable failed to obtain a license directly from Plaintiff – just as Mashable would be within its rights to again seek a license from Plaintiff, perhaps at a higher price, if Plaintiff switched her Instagram account to “private” mode.
Next, Plaintiff claims the agreements between Instagram and Plaintiff cannot confer a right to use the Photograph upon Mashable because Mashable is not an intended beneficiary of any of the agreements. But Mashable need not be an intended beneficiary of the agreements by which Plaintiff authorized Instagram to sublicense the Photograph in order to receive a valid sublicense from Instagram.
Indeed, Plaintiff authorized Instagram to grant a sublicense to, inter alia, anyone who uses Instagram’s API. Whether Mashable is an intended beneficiary would only matter if Mashable were attempting to enforce one of the agreements between Instagram and Plaintiff, which Mashable is not.
Plaintiff also contends that her authorization to Instagram to sublicense the use of the Photograph is invalid because it was created by a series of complex, interconnected documents. Specifically, the Terms of Use establish that Plaintiff grants Instagram a sublicensable right of use, but the scope of the sublicense is detailed fully in Instagram’s Platform Policy and Privacy Policy.
Under California law, this practice is accepted: when one document incorporates another by reference, “the original agreement and those referred to must be considered and construed as one.” While Instagram could certainly make its user agreements more concise and accessible, the law does not require it to do so.
The Court found that Mashable used photograph pursuant to a valid sublicense from Instagram, and that Plaintiff failed to state a claim for copyright infringement against Ziff Davis.
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