Instagram sees embedded copyright suit dismissed
A California District Court has dismissed a copyright infringement suit from two photographers claiming that Instagram’s embedding links violate display rights.
Photographers Alexis Hunley and Matthew Brauer claim that the app violates their exclusive display rights for images through the “embedding tool”, which allows any third-party website to display copyrighted photos or videos displayed on an Instagram account.
Both plaintiffs argued that this feature makes Instagram secondarily liable for the third party’s copyright infringement.
Instagram moved to dismiss the complaint in July for failure to state a claim, arguing that Instagram’s embed code does not create a copy of the image on the third-party site so cannot be held liable for direct infringement.
The photographers did not dispute the argument that Instagram was not responsible for “direct infringement”. Therefore, they had to prove “some underlying direct infringement by the third party”, according to the court.
In a short opinion handed down on Friday, September 17, the US District Court for the Northern District of California granted Instagram’s motion to dismiss, claiming that Hunley and Brauer had failed to convince the court of any act of infringement from third-party websites.
However, the plaintiffs were granted permission to file an amended complaint within 30 days of the order.
Perfect 10 test
The three-judge panel employed the Perfect 10 sever test to determine whether the third parties infringe through embedding.
The test originates from Perfect 10 v Amazon.com, which ruled that “if a website publisher does not ‘store’ an image or video… the website publisher does not ‘communicate a copy’ of the image or video and thus does not violate the copyright owner’s exclusive display right”.
Hunley argued that the server test should not apply to third-party websites that embed images and videos shared on social media as Perfect 10 addressed embedded search engine links.
Writing for the three-judge panel, Charles Breyer claimed that Perfect 10 did not state or indicate that its ruling was limited to the search engine context, and applied the test, finding that third-party websites were not liable for underlying, direct infringement of image rights.
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