3 June 2020CopyrightRory O'Neill

New York court divided on Instagram sub-licence

Judges at a New York federal court appear split on whether  Instagram’s user agreement grants publishers a sub-licence to reproduce photographs uploaded to the social media platform.

A ruling issued earlier this week by the US District Court for the Southern District of New York means US magazine  Newsweek must face copyright infringement claims brought by photographer Elliott McGucken.

McGucken is suing Newsweek for reproducing a photo he took of Death Valley, which he uploaded to Instagram, and using it without his permission.

Newsweek had argued that the case should be dismissed because Instagram’s user agreement effectively provided it a sub-licence to use the photograph.

But in an opinion handed down Monday, June 1, Judge Katherine Failla said Newsweek hadn’t proven its argument, and rejected the magazine’s motion to dismiss the suit.

Instagram’s privacy policy, which all users of the platform agree to, states that “other Users may search for, see, use, or share any of your User Content that you make publicly available through [Instagram]”.

Newsweek’s defence was similar to one successfully argued by  Mashable in a copyright lawsuit less than two months ago. In April, Judge Kimba Wood, also of the Southern District of New York, ruled that Mashable’s embedding of an Instagram post in an article couldn’t give rise to a copyright complaint.

In that decision, Wood ruled that photographer Stephane Sinclair had “granted Instagram the right to sublicense” her photograph when she uploaded it to the platform and designated it as ‘public’.

But Judge Failla appeared to disagree with her colleague. In the Newsweek ruling, Failla wrote that, while Wood’s decision was “well-reasoned”, she could not rule at this stage that there was a valid sub-licence between Instagram and Newsweek.

“Although Instagram’s various terms and policies clearly foresee the possibility of entities such as Defendant using web embeds to share other users’ content, none of them expressly grants a sublicence to those who embed publicly posted content,” Failla wrote in her opinion.

Kimberly Almazan, special counsel at  Withers, and an expert in artists’ copyright, told WIPR that Failla had “walked back” from the court’s Sinclair ruling, and that both artists and publishers should pay close attention to the dispute.

“It makes most sense for companies to first seek a licence directly from the user so as to avoid costly legal battles,” Almazan said.

But, she added, photographers should be aware that “posting publicly-available images on Instagram may divest them of the ability to bring a copyright infringement action, at least in New York”.

Did you enjoy reading this story?  Sign up to our free daily newsletters and get stories sent like this straight to your inbox.

Already registered?

Login to your account

To request a FREE 2-week trial subscription, please signup.
NOTE - this can take up to 48hrs to be approved.

Two Weeks Free Trial

For multi-user price options, or to check if your company has an existing subscription that we can add you to for FREE, please email Adrian Tapping at

More on this story

25 June 2020   Rightsholders and platforms can coexist peacefully using existing technology—it just needs to be implemented, argues Cesar Fishman of Pex.
29 June 2020   In a rare move, a New York federal judge has agreed to reconsider a controversial decision which said news outlets could freely publish images which had been publicly uploaded to Instagram.
25 November 2021   Instagram has filed a motion to dismiss an amended infringement complaint filed by a pair of photographers centring on posts that appeared on sites including Buzzfeed and Time.