US judge agrees to reconsider Instagram copyright ruling

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.

In April, Judge Kimba Wood of the US District Court for the Southern District of New York ruled that Instagram’s terms contain an implicit sublicence to publications wishing to use photographs uploaded to the platform.

The decision was a win for  Mashable, which had been sued for copyright infringement by photographer Stephanie Sinclair.

But just two months later, another judge at the same court appeared to  disagree with Wood when faced with a similar case involving Newsweek magazine.

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

Failla’s opinion revealed a split in the court on whether news publications could use images posted publicly on Instagram.

And in a rare move, Wood has now  formally agreed to reconsider her original opinion at the request of Sinclair.

“The court is doing a 180-degree turn,” said Kimberly Almazan, special counsel at Withers law firm and expert in art copyright.

“Motions for reconsideration are not often granted,” Almazan said, adding that the “standard for granting them is really high”.

“You normally have to show new evidence, a change in controlling law, or a clear error,” she said.

In her latest opinion, Wood acknowledged that there was “insufficient evidence that Instagram exercised its right to grant a sublicense to Mashable”.

Instagram itself issued a statement which said: “Instagram does not provide users of its embedding application programming interface (API) a copyright licence to display embedded images on other websites.”

The embedding API allows publications to embed Instagram content in articles on their websites. Almazan said that Wood’s latest opinion was a “big deal for companies using that technology and they should think twice about doing it in the future”.

The split between two judges in the same district court was also very unusual, Almazan said.

“I don’t think I’ve ever seen a situation where you have two cases before the same court with the same facts⁠—this might never happen again.”

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