With a split between the Second and Ninth Circuits looming regarding embedded content and copyright infringement, Instagram rolled out a new feature in mid-December allowing users to choose whether to allow embedding of their posts on third-party websites. Companies and individuals are no longer required to make their Instagram accounts private to stop unwanted embedding. The prior choice—between a private but protected account and a public one open to unwanted copying with potentially no copyright infringement recourse—was difficult to make for many visual content producers because they rely on Instagram traffic, requiring public profiles. Accordingly, the new Instagram update comes as a welcome gift for many photographers, designers, illustrators, cartoonists, artists, and other visual creators. 

Since 2007, when the Ninth Circuit adopted the ‘server test' in Perfect 10, Inc. v. Amazon.com, Inc., companies and individuals sued for copyright infringement have relied on its holding that whether a website publisher is directly liable for copyright infringement turns on whether the image is hosted on the publisher's own server or is embedded or linked from a third-party server. 508 F.3d 1146 (9th Cir. 2007).

Recently, the issue of whether embedding an image shields an unauthorized user from copyright infringement liability has been fiercely litigated across the country. Even Instagram and its parent company have been brought to court as defendants in cases hinging on the ‘server test.' For example, in Hunley et al v Instagram LLC, two photographers filed a copyright infringement suit arguing that Instagram and its parent company profit from the embedding process which constitutes secondary and contributory copyright infringement. No 3:21-cv-03778 (CRB) (N.D. Cal., May 19, 2021). In attempting to defeat Instagram's motion to dismiss, the photographers relied in part on the United States District Court for the Southern District of New York's ruling in Nicklen v. Sinclair Broadcast Group, Inc., et al. where the court refused to adopt the ‘server test.' No. 20-cv-10300 (JSR), 2021 WL 3239510 (S.D.N.Y. July 30, 2021). Ultimately, the Hunley court applied the ‘server test' as articulated in Perfect 10 and granted Instagram's motion to dismiss with leave for the photographers to file an amended complaint. No 3:21-cv-03778 (CRB) (N. D. Cal., September 17, 2021). To the extent that the photographers believe that “the Ninth Circuit's server test misinterprets the Copyright Act,” the court held that they “are free to present that argument to the Ninth Circuit and the Supreme Court. But this court is not free to artificially narrow or overrule binding precedent.” Id.

Artists and their professional societies have consistently advocated for a change in Instagram's embedding policies. On the heels of an earlier S.D.N.Y. decision holding that an embedded image on a third-party website does not constitute copyright infringement (Sinclair v. Ziff Davis, LLC, No. 18-CV-790 (KMW), 2020 WL 3450136 (S.D.N.Y. June 24, 2020)), the American Society of Media Photographers asked Instagram to reconsider its terms of use and policies. Similarly, the National Press Photographers Association requested that Instagram provide the option to disable embedding to prohibit attempts at circumventing copyright laws. Both organizations have applauded Instagram's newest feature.

While the social media platform's update provides a new layer of protection for visual content creators, turning off the embedding functionality on Instagram will not stop unwanted copying. It may, however, reduce the reliance on the ‘server test' as a defense to copyright infringement. Because the caselaw surrounding embedded images remains highly unsettled, both content creators seeking to protect their copyrights and companies and social platforms relying on the ‘server test' as a guard against infringement claims must continually evaluate the risks of sharing and resharing content online.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.