• by Wendy Davis  @wendyndavis, May 2, 2024

A federal appellate court on Wednesday rejected photographers' request for a new hearing in a battle over an Instagram tool that allows outside publishers to embed images from the platform.

The move leaves in place a decision issued last August, when a three-judge panel of the 9th Circuit Court of Appeals upheld a trial judge's ruling that Instagram's tool didn't contribute to infringement. 

The battle dates to May 2021, when photographers Alexis Hunley and Matthew Scott Brauer claimed in a class-action complaint that Instagram induced news publishers to engage in “widespread copyright infringement” by offering an embedding tool.

The photographers alleged that pictures they had uploaded to Instagram were displayed on BuzzFeed's and Time's websites.

A photo Hunley took at a Black Lives Matter protest appeared in the June 3, 2020 BuzzFeed news article “17 Powerful Pictures Of The Protests Through The Eyes of Black Photographers,” according to the complaint.

Brauer alleged his photo of Hillary Clinton, which he uploaded to Instagram, was included in the January 31, 2016 Time article “These Photographers Are Covering the Presidential Campaign on Instagram.”

U.S. District Court Judge Charles Breyer in the Northern District of California threw out the photographers' lawsuit several years ago on the grounds that embedding images doesn't infringe copyright and, therefore, Instagram's tool didn't contribute to infringement.

Breyer based his ruling on a 2007 9th Circuit decision that web publishers don't infringe copyright by displaying images that are stored on other companies' servers. That 17-year-old ruling stemmed from a lawsuit by adult entertainment company Perfect 10 against Google over search results that offered “in-line” links to outside publishers' sites that contained unlicensed photos. Google's code allowed users to view the photos without leaving Google because the images remained on the outside publishers' servers.

Hunley and Brauer argued to the 9th Circuit that the prior ruling was outdated and created a loophole in copyright law.

The appellate judges rejected that argument last year, writing that they had to follow the 2007 ruling until either the entire 9th Circuit reconsiders, or the Supreme Court weighs in.

“It is not our role to craft a policy solution and rewrite the law to our tastes,” they added. “We can only apply the law as it currently exists.”

Hunley and Brauer then asked the 9th Circuit to rehear the case “en banc” -- meaning by a larger pool of judges.

Among other arguments, Hunley and Brauer contended that social media has “exploded in importance” since the 9th Circuit's 2007 decision.

“No independent creative artist can succeed in today’s environment without a robust public presence on social media to display their work,” their counsel wrote in a petition filed last August.

At least two federal judges in New York (which isn't within the 9th Circuit) have rejected the 2007 9th Circuit decision and ruled that websites embed copyrighted images might infringe copyright, regardless of whether the images are stored on those sites' servers.

Hunley and Brauer's lawsuit drew the attention of outside organizations including the National Press Photographers Association, which backed Hunley and Brauer. That group argued to the 9th Circuit that a “properly functioning licensing market” requires courts to rule that the unauthorized use of copyrighted content -- due to embedding or any other technology -- is an infringement.

Silicon Valley companies including Google, X Corp., Pinterest and the Wikimedia Foundation sided with Instagram, arguing that a ruling against the service would “profoundly distort copyright law and make millions of website operators into infringers.”