Photography Court Case.

viewfromthenorth said:
I have a blind spot when it comes to understanding anything legal, but my understanding is that she agreed to Instagrams T&C’s and in so doing she allowed them to sub-licence, but then kicked off when they did?
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Pretty much although another photographer did exactly the same thing and won his case in the same state just a different judge. For this one, she must of had a terrible lawyer as legal precedence had already been set and it should have been open and shut in the photographers favour.
 
To this non-lawyer, the original 'server test', which the previous decision mentioned in the article rejected, seems like the best way to decide this - allow embedding so that the web browser can display content hosted elsewhere, but not copying of the content to your own server. Without the problematic precedent set by the previous decision, there would be no need to invoke sub-licensing. It also probably wouldn't have occurred to me that embedding constitutes sub-licensing. I imagine there's small print somewhere that says 'if you embed the media posts we host, you agree to our licence', but I wonder if that would stand up to a further legal challenge, since no licence has been agreed explicitly. I sometimes embed Tweets here, which often contain images, just by posting the link, but I've no idea what Twitter's T&Cs are.
 
Retune said:
but I've no idea what Twitter's T&Cs are.
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All but a few people are in the same position towards terms and conditions. They seem to be written by lawyers who are paid by the word. :sulk:
 
I have always considered that there is a significant risk in posting images to Instagram or Flickr and other social media so have thus never used these platforms. I do not earn a living from my photography but would be very concerned to protect my copyright if I did.

Dave
 
Here's a random Elliott Erwitt image linked from a Magnum posting on Instagram. I've just copied and pasted the link and did not even have to press the 'insert image' button - The TP forum software, Instagram's server and your web browser have done the rest. I don't have an Instagram account and have never seen their T&Cs. Have I, or TP, sublicensed the image in any meaningful sense?
View: https://www.instagram.com/p/B-uqr7rA6r9/
 
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The New York courts reverse direction on 'The Server Test' faster than a bishop in a brothel.

They've changed at least three times in the last five years (and in legal terms - that's pretty radical).

It all depends on the politics of the judge presiding.

In this case, although the reasoning is utter pants, the final judgement is fairly sound; ie it effectively allows the Server Test but for the wrong reasons.

Hopefully another judge with better sanity will clear the ruling up because it's fairly likely to be taken to appeal.

As for what the 'Server Test' is, that's fairly simple, it is almost identical to the laws we now have here in the EU; embedding is not infringement.
 
My understanding is that this ultimately had nothing to do with the server test, the server test is never mentioned in the final judgement, and this ruling has no effect on future applications of the server test. The server test is about when there is an unauthorised copy, can somebody be committing copyright infringement if they don't directly handle the file but do make use of it by embedding it. This case was about an authorised jpeg that the author provided to a legal service.

Instagram has an official embedding functionality. By having an Instagram account you have authorised Instagram to allow Instagram to embed your photo in any and all 3rd party websites
Sinclair uploaded her own photo and hence granted Instagram the required licence and authorisation.
Mashable embedded her photo using the official embedding API in exactly the manner it was intended. There was no hackery or workaround involved.

Based on the facts, I don't think there could really be any other sensible conclusion that made logical sense.
 
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Embedding = Server Test.

If Mashable had either screenshot or downloaded the image (creating a copy) then their defence wouldn't have worked.
 
The 'server test' arose from a case where a third party server had an unauthorised copy of a works and the 'server test' was used to answer the question "Was the person who embedded the works also guilty of copyright infringement (in addition to the owner of the server and the person downloading the works via the embed (who are guilty))?" The original case decided 3rd party embedding didn't make you guilty, because you never handled the unauthorised works yourself. Subsequent cases have said, actually it's still copyright infringement; Contributory copyright infringement involving inducement.

This case is fundamentally different because it revolves around an authorised server (Instagram's) serving a an authorised jpeg (uploaded by the copyright holder after agreeing to Instagram's T&Cs). If anything it's more akin to the legal questions around image hotlinking/inline linking/leeching. Had they downloaded or screenshotted the image then it would have been a totally different legal question, one around an unauthorised copy. If I had gone to Sinclair's website, downloaded a photo, uploaded it to my Instagram account, and they embedded that, then again it would be a 'server test' case.

Basically, the 'server test' was an attempt to answer the question "Do you need a image licence to do behaviour X?", this court case ended up being about the question "Did they have a valid licence to do behaviour X?" (answer: yes they did via the Instagram T&Cs).
 
Again - it is about the location of the image - which is the principal of the server test.

However that's pretty much immaterial to us as embedding has been legal in the EU since 2014.
 
I think the big thing that stick out here is that Mashable directly contacted the copyright owner who explicitly refused them a licence, so they went and done it another way.

If they had just gone and done it, I agree there would have been uproar, but the fact that by posting the image she agreed to the sub licence agreement kills off any argument the photographer had. However, after getting a refusal they went through a "back door". It's the ethics that should be on trial, not whether there was a copyright breach.

And I know that's hard to stand up in court...
 
I understand the verdict is not final as the case can (and will be) appealed all the way up through the system. So it may and hopefully will change, but I also accept a chance that it may stay

I have been always very fearful of Instagram and Facebook T&Cs and have largely avoided using their service. It seems being cautious was the right decision. If the judgement holds your images on insta are given away to that fat tick to pass on his globalist minions just as he pleases.

The only workaround I can see is a very liberal application of heavy and nasty watermarks on these social platforms. This would surely make photo embedding not practical for most self-respecting sites. However, my experience shows that there are plenty of dumb corporate users that will take and use watermarked image (quite a few paid out for the privilege so far)
 
LongLensPhotography said:
I understand the verdict is not final as the case can (and will be) appealed all the way up through the system. So it may and hopefully will change, but I also accept a chance that it may stay

I have been always very fearful of Instagram and Facebook T&Cs and have largely avoided using their service. It seems being cautious was the right decision. If the judgement holds your images on insta are given away to that fat tick to pass on his globalist minions just as he pleases.
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In the EU, embedding has been legal for six years. Why start complaining now?
 
DemiLion said:
In the EU, embedding has been legal for six years. Why start complaining now?
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OK, even more so there is a big fat reason to intrusively watermark all viable images on social media.

P.S. Just for the record I was complaining about them for a while :)
 
DemiLion said:
In the EU, embedding has been legal for six years. Why start complaining now?
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The case was wider than embedding. If the Instagram API provided a way to download for use in printed media, she would still have lost because she agreed to the T&Cs.
 
Updated July 2, 2020 with new case information.

In response to recent developments in a lawsuit between pro photographer Elliot McGucken and Newsweek, Instagram told tech publication Ars Technica via email last week that it does NOT grant a sub-license to anyone who uses their “embed” feature to share a public photo.

The announcement most likely came as a shock to users who believed that embedding images, rather than hosting them directly, provides protection against copyright claims.

In April, Mashable won a lawsuit against photographer Stephanie Sinclair after Sinclair refused to allow the website to share her photos and Mashable published them anyway via Instagram’s embed feature. That prompted Sinclair to sue for copyright infringement; she lost that suit.

But then, a court in New York reopened that lawsuit in June. The photographer filed a motion after Instagram contradicted that case's initial ruling with this announcement.

Said Facebook's representative: "Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law."

According to Ars Technica, The Newsweek suit centered around McGucken's rare photo of an ephemeral lake in Death Valley that was filled with flood water. Newsweek asked to license the image, but McGucken turned down their offer. So instead Newsweek embedded a post from McGucken's Instagram feed containing the image.

McGucken sued for copyright infringement, arguing that he hadn't given Newsweek permission to use the photo. Newsweek countered that it didn't need McGucken's permission because it could get rights indirectly via Instagram. Instagram's terms of service require anyone uploading photos to provide a copyright license to Instagram—including the right to sublicense the same rights to other users. Newsweek argued that that license extends to users of Instagram's embedding technology, like Newsweek.

Despite the Mashable ruling in April, Judge Katherine Failla refused to dismiss McGucken’s suit against Newsweek, saying that there "wasn’t enough evidence to determine that Instagram’s terms of service provides a sub-license to use every embedded photo."

As Ars Technica reported, "Before you embed someone's Instagram post on your website, you may need to ask the poster for a separate license to the images in the post. If you don't, you could be subject to a copyright lawsuit."

Ars Technica went on to say that, "Professional photographers are likely to cheer the decision [in the Newsweek case], since it will strengthen their hand in negotiations with publishers. But it could also significantly change the culture of the Web. Until now, people have generally felt free to embed Instagram posts on their own sites without worrying about copyright concerns. That might be about to change.
 
f/2.8 said:
The announcement most likely came as a shock to users who believed that embedding images, rather than hosting them directly, provides protection against copyright claims.
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It does. In the EU.

Rather important to stress that. Again.
 
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