Embedding Instagram post on sites without permission could lead to copyright infringement

Facebook-owned Instagram has clarified that it does not grant websites a copyright sub-license to embed other user posts. Users who want to embed Instagram posts of other users on websites will have to request the creator of that post for a copyright license, or else it can be subject to a copyright lawsuit.

The news arrived after a New York judge ruled that Newsweek can not dismiss a photographer’s complaint based on the Instagram terms of service. In 2019, Newsweek asked a photographer Elliot McGucken to publish a rare photograph that he took of an ephemeral lake in Death Valley. The photographer declined to license the photo. So Newsweek embedded the Instagram post of McGucken that contained the image. McGucken sued the company for copyright infringement. Newsweek counter-argued that it had obtained the rights through Instagram.

“While our terms allow us to grant a sub-license, we do not grant one for our embeds API,” a Facebook company spokesperson was quoted saying to Ars Technica in an email. “Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content if a license is required by law.”

When a user agrees to Instagram’s terms of service, the user gives a copyright license of any photos they upload to the platform, including the sub-license of content to other users. Newsweek argued that that license extends to the user of the embedding tool. In April 2020, Mashable has won a similar case on the same argument.

Instagram also told Ars Technica that it is exploring ways for users to control who can embed their posts. For now, users can prevent embedding posts by making their Instagram account private, but that also limits users to view the content on Instagram.