Court Case May End Embedding Instagram Photos

How many times have you heard the expression “content is king”? If you’re in the internet marketing game, you probably half-a-dozen times by lunchtime Tuesday. But not every business has the resources to produce original written content, images, and videos, and one of the most popular shortcuts may soon be taken away. 

McGucken v. Newsweek

One of the ways that large media outlets and other organizations attempt to get around copyright infringements is by embedding photographs from Instagram instead of using a cut-and-paste copy. It seems like a reasonable compromise since the reader is directed to the original post, instead of viewing the image on the poster’s webpage. As long as the Tweet, Instagram image, or Facebook post remains public and available, the reader can see what the article is talking about by clicking on the link. In recent years, many content publishers have operated under the belief that they were not violating copyrights. But McGucken v. Newsweek, being tried in the Southern District of New York, may end the practice of embedding proprietary social media photos once and for all. 

The Details of the Case

“Plaintiff Elliot McGucken is a photographer who focuses on landscapes and seascapes.  On March 13, 2019, Plaintiff posted on his Instagram account a photograph of an ephemeral lake (the “Photograph”) that had appeared in Death Valley, California.  The following day, Defendant Newsweek published an article about the ephemeral lake (the “Article”), embedding Plaintiff’s Instagram post of the lake as part of the Article.” – District Judge Katherine Polk Failla

A representative from Facebook, which owns Instagram, made the following statement to “Ars Technica”:

“While our terms allow us to grant a sub-license, we do not grant one for our embeds API. Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law.”

The Mashable Case

While it seems that Newsweek and others may not be able to expect much help from Facebook/Instagram, they may look for a little hope from another judge’s ruling, also from the Southern District of New York, who ruled in favor of Mashable (the defendant) in a similar case in April. This does not, however, mean that the Newsweek case is a slam dunk, and if the Newsweek ruling goes in a different direction than the Mashable case, it could set up a Supreme Court decision.  

Here’s How You Can Protect Your Content

While this may be a little premature — the court could still rule in favor of Newsweek — we believe that content providers should plan ahead for any contingency. Here are a few tips to protect your site:

1. Use original content whenever possible. 
2. Ask for written permission from the owner of the Instagram account before pasting or embedding their photo.
3. Use stock image sites for pictures when possible, like Unsplash or Pixabay. Use a free photo editor for editing the photo!
4. Remove images at the owners’ requests. You may be saving yourself legal trouble by just acquiescing to their wishes.
5. Follow the McGucken v. Newsweek case to find out whether the court follows the precedent set in the Mashable case. 
6. Contact an experienced web design and internet marketing firm. 

On The Map Marketing has been in business for over a decade. During this time, we’ve adapted to the legal trends that affect our industry. We protect our clients by producing our own content or obtaining licensing to share proprietary content on our clients’ sites. Contact us today to discuss your internet marketing and design needs.

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Article by Michael Davis

Michael Davis is the Content Director for On The Map Marketing where he manages a skilled team of SEO content writers. He began writing and editing content for law firm websites in 2011. Since that time, he has helped develop dozens of successful content strategies for law firms operating in 38 states in varying practice areas.