.jpg)
Who owns what we see online? It’s perhaps not a question we give too much thought about, at least beyond our own purview; so long as we don’t see something that we own or created on some website, we’re not too worried about the question, particularly given the overwhelming number of other worries we have on a daily basis.
Sharing or embedding the work of others is something we might give a bit more though to, particularly if you’ve read this blog for any length of time, but again, it’s not something we’re overly concerned with; after all, the platforms we frequent offer us the option to share other’s posts or tweets, giving it all the appearance of legitimacy. The legality of it is not quite so clear cut, though a recent case may offer a hint as to an ultimate resolution to the matter
As reported by Timothy B. Lee at Ars Technica, a federal judge in New York ruled in favor of the news site Mashable in a case brought by photojournalist Stephanie Sinclair over copyright infringement regarding an embedded Instagram post in an article on the site. In the telling of events, Mashable offered Sinclair a $50 fee to licence a photo of hers for an article on female photojournalists; when Sinclair refused, the site instead embedded one of her Instagram posts in the story, prompting her to file a lawsuit.
At the center of the case are a couple of legal theories Lee highlights that have been used as justification for embedding in other cases. The “server test” posits that, because the copyrighted content is embedded with a code as opposed to a copy of the image being placed within the post, infringement doesn’t occur because the material itself isn’t stored or transmitted by the site using the image, but rather by the host, in this case Instagram.
Lee does note that the “server test” hasn’t always worked as a defense, and that Mashable won a decision with a new tact: by arguing that, because Sinclair licensed the image to Instagram under the terms of service and because Instagram then offers limited licensing through those same terms and its embed code, the site was within its legal right to use the embedded image in its post at the time. The defense does rest on the legitimacy of the poster’s copyright claim, and on them not revoking any such license by setting their posts or accounts to private (as Sinclair eventually did) but it would avoid the set of issues presented with the “server test” defense.
It might seem a minor issue at present, but given the ubiquity of listicles that are really just a compliation of embedded tweets or Instagram posts (looking at you Buzzfeed) it may be an issue that would arise more often than we might think without a firm legal resolution to the question.
{{cta(‘a7fcaf13-93aa-45fa-a3db-7eb212d0d9c9’)}}