I have really enjoyed the recent four-part series of posts by Mike Boatman on the ins-and-outs of copyright, including how to navigate the process of making a claim against an infringer. It really opened my eyes to a number of elements on the topic that I’d not previously considered. It actually gave me a lot more hope that, with a little bit of diligence, patience, and commitment to the process that Mike laid out, we can really hit back hard against those who use our photos inappropriately.
A couple of days ago, I saw a very recent article that really made my eyes roll! The article, which can be found here, reported what could be a significant ruling against the legal norm that a photographer always retains copyright. The article details a lawsuit filed in US District Court by a rather successful photographer, Stephanie Sinclair, against a news service called Mashup. Apparently, Mashup contacted Ms. Sinclair for permission to use a photo she’d posted on her Instagram (IG) account. She declined and despite this, Mashup used the photo anyway (Sound familiar?).
In the ruling, the judge, Kimba Wood, states Ms. Sinclair’s decision to post the photo on IG “granted Instagram the right to sublicense the Photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph”. The judge noted that when Ms. Sinclair opened an account on IG, she agreed to its terms of service, which specified that IG had "a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the content." In light of this, apparently, the judge concluded that Mashable did not require a license from Ms. Sinclair to use her photo on its website. The article concludes by noting Ms. Sinclair’s lawyer stating that the district court opinion went contrary to “the binding law of the United States”.
I have only been on IG for less than a year and I'm certainly not well-versed enough on it to make any sort of definitive statements here. In speaking to many photographers in our community though, I’ve come to appreciate that IG can be a very powerful marketing tool when used well. So, I simply wanted to ask the question: Does this court-ruling give you cause for concern regarding how you proceed with IG as part of your marketing plan? I look forward to your comments!
BTW, for those of you who didn’t catch Mike Boatman’s terrific articles, they’re well worth your time. You can find them by clicking on the links below: