A group of photographers have filed a class action suit in the US District Court for the Northern District of California in San Francisco against Instagram, accusing the Facebook-owned platform of inducement of copyright infringement as well as contributory and vicarious copyright infringement.
Photographers Alexis Hunley and Matthew Scott Brauer, represented by the Duncan Firm, Cera, The Law Offices of Todd M. Friedman and Hoben Law, are asking for the court to determine that their action can be certified as a class action, for a jury trial and that Plaintiffs and the Class are awarded damages derived from the infringing acts, and/or statutory damages.
At the heart of the complaint is the use and functionality of Instagram's "embedding" tool, which allows third party platforms to reproduce pictures and posts initially available on Instagram. Plaintiffs allege that "when a third party embeds a copyrighted photo or video from an Instagram user’s Instagram account to that third-party’s website without a license, permission, or valid legal defense from the copyright owner, or from Instagram, this constitutes an infringement of the copyright owner’s exclusive display right under the Copyright Act of 1976, and therefore violates the law."
Usurpation of the value of copyrighted works
The suit contends that the effect of this "scheme" has been "the usurpation of the value of the copyrighted works, as the practice of embedding posts from Instagram has vitiated and diluted the market for licensing fees."
It claims that by encouraging third party online publishers – such as BuzzFeed.com, Time.com, or Mashable.com – to use the embed tool to display copyrighted works without a license or permission from the copyright owners or from Instagram, Instagram is "secondarily liable for each instance of those online publishers infringing a copyright owner’s display right caused by the unauthorised embedding of the respective photo from the user’s Instagram post."
In addition, Plaintiffs claim that "to make matters even more problematic for copyright owners who published their photos and videos on Instagram, Instagram did not provide any tool, device or meaningful way for copyright owners to control or track third party embeds of their Instagram posts, thereby depriving copyright owners of the ability to discover alleged infringements."
Making it harder to embed posts
The suit adds that third party are using pictures posted on Instagram, even though Instagram "has admitted that it has never granted any third-party embedder a license or sub-license to any of the Plaintiffs’ or class members photos or videos at issue." This, according to Plaintiffs violates both the Copyright Act and Instagram’s own Terms of Use.
Alison Frankel, who writes the daily On the Case column for Reuters and Westlaw, explained that the photographers "want an injunction to require Instagram to prevent or limit infringement, presumably by making it much harder for online publishers to embed Instagram posts containing copyrighted images without photographers’ consent."
Instagram has not commented on the case.
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