Sinclair v. Ziff Davis, LLC and Mashable, Inc., Case No. 18-cv-790-KMW, 2020 WL 1847841 (S.D.N.Y. April 13, 2020)
In Sinclair v. Ziff Davis, LLC, the plaintiff (“Ms. Sinclair”) was a professional photographer who maintained a personal website and public Instagram account displaying her work. To promote and showcase her photography, Ms. Sinclair uploaded the photograph at issue, titled “Child, Bride, Mother/Child Marriage in Guatemala” (the “Photograph”), to her website and Instagram account. The defendant (“Mashable”), a media and entertainment platform, saw the Photograph and sought to include it in its soon-to-be-published article about female photographers. After Ms. Sinclair rejected Mashable’s request for a license to use the Photograph in its article, Mashable published a version of the article on its website that included an embedded version of the Photograph from Ms. Sinclair’s public Instagram account. Embedding is a “technical process” that “allows a website coder to incorporate content, such as an image, that is located on a third-party’s server, into the coder’s website. When an individual visits a website that includes an ‘embed code,’ the user’s internet browser is directed to retrieve the embedded content from the third-party server and display it on the website. As a result of this process, the user sees the embedded content on the website, even though the content is actually hosted on a third-party’s server, rather than on the server that hosts the website.” Sinclair v. Ziff Davis, LLC and Mashable, Inc., Case No. 18-cv-790-KMV, 2020 WL 1847841, at *2 (S.D.N.Y. April 13, 2020) (internal citations omitted).
Ms. Sinclair subsequently brought suit against Mashable for copyright infringement, and Mashable filed a motion to dismiss that resulted in the instant decision.
The Sinclair decision arrives two years after Goldman v. Breitbart News Network, LLC, which considered whether similar conduct (i.e. embedding content publicly available via Twitter) constituted an unauthorized public display in violation of the Copyright Act. In Goldman, the court ultimately denied summary judgment to the defendant and found that the technical process of embedding an image on a website could constitute copyright infringement as a forbidden public display even if the embedded image did not reside on the alleged infringer’s server. Despite this holding, the Court in Sinclair noted that whether embedding an image is a public display that constitutes copyright infringement is “unsettled in [the Second] Circuit.” However, because the Sinclair court found that Mashable’s use was permitted under Instagram’s licensing provisions—which were agreed to by Ms. Sinclair, the copyright owner of the Photograph, upon publicly posting the Photograph to Instagram—it did not reach this “unsettled” question of law.
The most apparent takeaway from Sinclair is that embedding publicly-available images from Instagram (or other social media platforms with comparable licensing provisions) provides a workaround for sharing content that may otherwise constitute copyright infringement, so long as the embedded image was posted on Instagram by the copyright owner. Embedding a photograph from social media that was not uploaded by the copyright owner could constitute copyright infringement as a forbidden public display if courts follow the rationale in Goldman—although, this issue is presently an unsettled question of law. Thus, users looking to embed publicly available content must ensure that (1) the social media platform hosting the content has a terms of service agreement that provides a license to third parties for such embedded use and (2) the content sought to be embedded is uploaded to the social media platform by the copyright owner or a person with comparable authority. The Sinclair Court’s reliance on contracting and licensing provisions as the basis for its decision leaves open the possibility that other types of use might be permissible too—not just embedding. However, while an expansion of permitted uses is theoretically possible, the conduct in Sinclair involved embedding and the Court’s decision is limited in scope accordingly. Finally, the Sinclair decision does not provide authority to embed images or photographs that are publicly available anywhere on the internet. The decision is based on contract principles and the licensing provisions contained in Instagram’s various user policies. Without an underlying terms-of-use agreement like Instagram’s, embedded use of copyrighted images may still constitute copyright infringement as a forbidden public display based on the Goldman court’s rationale.
 One critical difference between the Sinclair and Goldman casesis that in Sinclair, the defendant embedded a photograph posted to Instagram by the copyright owner whereas in Goldman, the defendant embedded an image that had been posted to Twitter by someone other than the copyright owner.
 Notwithstanding its decision, the Goldman court acknowledged that (1) factual questions—such as the existence of licensing or authorization agreements—and (2) the fair use defense may ultimately absolve the defendant of liability. Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585, 596 (S.D.N.Y. 2018).