Instagram has now stated that embedding from the platform may not protect news organizations from cross-posting on their websites as the Facebook-owned social media network’s terms of service do not grant sites a sublicense to lodge other people’s posts.
Ars Technica reported on June 4th that Instagram’s policies ‘require third parties to have the necessary rights from applicable rights holders,’ as per a company spokesperson, which includes ‘ensuring they have a license to share this content if a license is required by law.’
The clarification is rather surprising considering the platform has been around for all this time, but it is only now offering clarification on the issue. The news followed a legal defeat for Newsweek when a New York judge ruled that the site couldn’t reject a photographer’s complaint regarding Instagram’s terms of service.
Another judge previously ruled that the platform could sublicense images to sites that embed its posts, which protected the website Mashable from a lawsuit, although the photographer clearly refused to permit them to use their images.
An Instagram spokesperson said: “While our terms allow us to grant a sub-license, we do not grant one for our embeds API. Our platform policies require third parties to have the necessary rights from applicable rights holders.”
Although the statement could mean disturbance for online publishing, suggesting that a news organization would be required to get a license for an Instagram post directly from the poster before they can embed it.
On one hand, it’s good news for professional photographers and artists who would otherwise get paid to post their work embedded on a personal website, but on the other hand, this might be the end of the rope for Instagram commentary.
For now, photographers were recommended to make their photos private, which severely limits their reach on the platform, but Instagram told Ars Technica that it is ‘exploring’ more ways for users to control embedding.
Can You Actually Use Instagram Images on Sites?
This doesn’t necessarily mean websites cannot use Instagram images. Neither judge determined on what’s known as the ‘server test,’ which is an argument that embedded images are not copying photos in a way that could violate copyright because they are actually pointing to content posted on another site (Instagram).
Still, it seems that Instagram isn’t in charge of sublicensing after all, as their policy clearly states:
“Licensed Uses and Restrictions: The Instagram Platform is owned by Instagram and is licensed to you on a worldwide (except as limited below), non-exclusive, non-sublicensable basis in accordance with these terms. Your license to the Instagram Platform continues until it is terminated by either party. Please note that User Content is owned by users and not by Instagram. All rights not expressly granted to you are reserved by Instagram.
You represent and warrant that you own or have secured all rights necessary to display, distribute, and deliver all content in your app or website. To the extent your users are able to share content from your app or website on or through Instagram, you represent and warrant that you own or have secured all necessary rights for them to do so in accordance with Instagram’s available functionality.
You represent and warrant that you satisfy all licensing, reporting, and payout obligations to third parties in connection with your app or website.”
By removing blanket legal protection, it would raise the legal bets for embedding an Instagram post, and depending on other website’s policies, also make embedding content from any social media platform most serious.