• by Wendy Davis  @wendyndavis, July 18, 2023

Siding with Instagram, a federal appeals court rejected two photographers' attempt to revive claims that the company's embedding tool enabled online news publications to infringe copyright.

In a decision issued Monday, a three-judge panel of the 9th Circuit Court of Appeals upheld a trial judge's ruling that web publishers don't infringe copyright by embedding images that are hosted on other servers, and therefore Instagram's embedding tool doesn't contribute to infringement.

The decision comes in a dispute dating to May of 2021, when photographers Alexis Hunley and Matthew Scott Brauer alleged in a class-action complaint that Instagram induced third parties to “commit widespread copyright infringement.”

Hunley and Brauer alleged that photos 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 that the January 31, 2016 Time article, “These Photographers Are Covering the Presidential Campaign on Instagram,” included an embedded Instagram post of photo of Hillary Clinton.

U.S. District Court Judge Charles Breyer in the Northern District of California dismissed the lawsuit last year, ruling that embedding images doesn't infringe copyright.

Breyer's ruling hinged on a 2007 9th Circuit decision that established the so-called “server test,” which says web publishers don't infringe by displaying images that are stored on other companies' servers. That earlier decision 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. That code let users view the pirated photos without leaving Google, because the images themselves stayed on the outside publishers' servers.

Hunley and Brauer appealed Breyer's decision to the 9th Circuit, arguing that the “server test” is outdated and created a loophole in copyright law that should be closed.

The appellate judges deciding the case rejected the photographers' arguments, writing that they were bound to follow the 2007 ruling -- at least until either the entire 9th Circuit reconsiders the earlier decision, 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.”

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

The photographers' appeal drew interest from a host of outside companies and organizations.

Google, Twitter, Pinterest and the Wikimedia Foundation sided with Instagram, arguing in a friend-of-the-court brief that a ruling against Instagram would “profoundly distort copyright law and make millions of website operators into infringers.”

The National Press Photographers Association supported Hunley and Brauer, arguing in a friend-of-the-court brief that a “properly functioning licensing market” requires courts to rule that the unauthorized use of copyrighted images is an infringement, regardless of the underlying technology.