Intellectual Property

Publishers Can Exhale After Motion To Dismiss Granted In Instagram Embedding Case

However, this ruling should not be interpreted as one that provides free rein for the republication of third-party content originally disseminated on social media.

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Photographer Michael Barrett Boesen took an early loss in a federal case he initiated against United Sports Publications, LTD based on a claim that the news gathering organization committed copyright infringement. The defendant had filed a motion to dismiss the action grounded on it embedding an Instagram post published by tennis player Caroline Wozniacki, focusing on a defense of fair use. On November 2, the U.S. District Court for the Eastern District of New York granted the motion.

The decision should be of importance for all publishers that are using social media content published by others within their articles. When the embedded content is the focus of the article, use of the image in the embedded content should generally be construed as a fair use.

However, this ruling should not be interpreted as one that provides free rein for the republication of third-party content originally disseminated on social media. The opinion should not be read as one that allows people to embed social media posts because they merely wish to use the images contained in the social media postings and believe that such actions can serve as workarounds to copyright infringement.

In the instant case, the defendant embedded an Instagram post by Wozniacki, who announced that she was retiring from professional tennis. The copyrighted content was not even owned by Wozniacki but, instead, photographer Boesen. The defendant’s article focused on Wozniacki’s career and embedded her Instagram post for context.

Prevailing on a motion to dismiss in a copyright infringement case based on fair use grounds is not a simple task. The moving party must convince the court that the use of the copyrighted content was fair after looking at four distinct factors.

The key concerning the purpose and character of use factor was that the use of the copyrighted photo was one where the copyrighted work itself was the subject of the story, thus transforming the function of the work in the new context. It was determined, referencing prior case law, that an article that embeds an Instagram post featuring a copyrighted photo and reports on that post is transformative. The fact that the publisher was a for-profit business has no effect on the transformative nature of the content at issue.

“This conclusion, which aligns with well-settled case law, does not give publishers free reign to copy and paste copyrighted images at whim whenever they appear on Instagram or Facebook,” the opinion states. “Rather,
it draws a line that balances photographers’ interest in protecting their copyrights with reporters’ interest in covering social media events.”

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The second factor, nature of the copyrighted work, was found to tip slightly in the defendant’s favor, mainly because the photograph was a published work appearing on the plaintiff’s own sites as well as Wozniacki’s Instagram. The third factor, amount and substantiality of the portion used, favored the defendant based on it merely embedding an image, which retained Instagram’s markings and diluted the image. Further, Wozniacki had previously chosen to use a lower resolution version of the original.

Finally, with the effect of use on the market factor, the court found that it was implausible for defendant’s use to compete with the photographer’s business or affect the value of his work. Further, the cropped, low-resolution photograph was deemed to be a poor substitute for the original, which is language that will certainly be used by future defendants who embed social media posts into their content.

Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

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