• by Wendy Davis  @wendyndavis, July 21, 2023

Photographers plan to continue their battle with Instagram over a tool that allows Buzzfeed, Time.com and other news sites to embed photos from the platform, according to papers filed Thursday with the 9th Circuit Court of Appeals.

Last week, a three-judge panel of the 9th Circuit ruled that Instagram does not contribute to copyright infringement by enabling the news sites to embed photos.

Lawyers for photographers Alexis Hunley and Matthew Scott Brauer on Thursday said they planned to ask the entire circuit to reconsider the case, and sought to extend the deadline to make that request to August 28 from July 31.

“This is an exceedingly complex and important case potentially affecting the rights of thousands of copyright holders, as well as Instagram ... and other similar services,” counsel wrote.

The dispute dates to May 2021, when Hunley and Brauer alleged in a class-action complaint that Instagram induced websites to commit “widespread copyright infringement” by offering an embedding tool.

Hunley and Brauer specifically 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 based the ruling on a 16-year-old 9th Circuit decision that held 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 allowed users to view the pirated 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Hunley and Brauer argued to the 9th Circuit that the prior ruling was outdated, adding that it created a loophole in copyright law.

The appellate panel 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 taken the opposite approach and ruled that embedded images might infringe copyright, regardless of where the images are stored.