Photographers Organizations Urge Court To Reinstate Claims Against Instagram

The National Press Photographers Association and other groups are siding against Instagram in a battle over its embedding tool, which allows outside publishers to display images from Instagram in news articles or other posts.

The groups are urging a federal appellate court to revive a lawsuit by two photographers who claimed Meta's Instagram contributes to copyright infringement.

In papers filed Tuesday with the 9th Circuit Court of Appeals, the organizations argue that a federal judge dismissed the claims prematurely, writing that the dismissal “sent a loud, clear, and unacceptable message that unauthorized embedders can deprive copyright holders of their rights to both control the use of their works and obtain licensing fees for those uses in this circuit.”

The groups' arguments come in a battle dating to May of 2021, when photographers Alexis Hunley and Matthew Scott Brauer sued Instagram for enabling web publishers like Buzzfeed and to embed images.

U.S. District Court Judge Charles Breyer in the Northern District of California dismissed the claims last year, ruling that online publishers don't infringe copyright by embedding Instagram images. Therefore, Breyer ruled, Instagram did not contribute to infringement.

Breyer's ruling hinged on a 2007 9th Circuit decision that web publishers don't infringe by displaying images that are stored on other companies' servers.

That 15-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. The links let users view the pirated photos without leaving Google, because the images themselves stayed on the outside publishers' servers.

“This court must faithfully apply Perfect 10 absent a contrary Ninth Circuit or Supreme Court ruling,” Breyer wrote.

Hunley and Brauer recently appealed to the 9th Circuit, arguing that the 2007 ruling is outdated, and that it created a “technical loophole” that should be closed.

At least two federal judges in New York 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.

The photographers' organizations point to those New York decisions as a reason to revisit the 2007 ruling.

“In order to ensure uniformity and clarity in application of copyright laws, this court should reverse the district court and find that violations of the display right cannot be countenanced merely because they occur through embedding,” the groups write.

They add that a “properly functioning licensing market simply cannot exist” unless the court says the unauthorized use of copyrighted content, through embedding or any other technology, is an infringement.

Instagram is expected to respond to the arguments later this month.

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