Another post about embedding photos using Instagram’s API!
In the earlier case (Sinclair v. Mashable), Judge Kimba Wood granted the defendants' motion to dismiss, concluding that, pursuant to Instagram's TOU and platform policies: (1) instagram users grant to Instagram broad, sublicensable rights to exploit the photos and other content the users post on their public Instagram pages, and (2) Instagram sublicenses to third parties the right to embed that user content on third party websites via Instagram's embeds API. Approximately six weeks later, Judge Katherine Polk Failla (in McGuckin v. Newsweek) reached the opposite conclusion and denied the defendant’s motion to dismiss. While she agreed with Judge Wood that users of Instagram grant a broad content license to Instagram which would enable Instagram, should it so choose, to sublicense rights to third parties, Judge Failla found, on the limited record before her on a 12(b)(6) motion (and drawing all inferences in favor of the plaintiff), that Instagram's terms and policies did not "expressly grant a sublicense to those who embed publicly posted content" and that there was insufficient evidence in the pleadings of an implied sublicense. In reaching this conclusion, Judge Failla acknowledged that "Instagram’s various terms and policies clearly foresee the possibility of entities such as Defendant using web embeds to share other users’ content" and that "it may be possible to read Instagram’s various terms and policies to grant a sublicense to embedders." (For a deeper dive into the arguments for and against interpreting Instagram's TOU and policies as granting a sublicense, see this post.)
So, for now, the results in these cases are harmonized:
Sinclair v. Mashable, Inc., 2020 WL 3450136 (S.D.N.Y. June. 24, 2020)
McGucken v. Newsweek, LLC, 2020 WL 2836427 (S.D.N.Y. June 1, 2020)