Photojournalists Sue Instagram Over Embedding

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Instagram usurped the value of copyrighted works through its embedding tool, encouraging the reposting of users’ content without licensing and profiting from those reposts, a new class action lawsuit alleges.

The nationwide class action lawsuit was filed in federal court in California on May 19 by photojournalists Alexis Hunley and Matthew Scott Brauer, who allege that Instagram is violating copyright laws through secondary copyright infringement — allowing others to infringe copyright — through its embed tool.

The embed tool allows third-parties, such as news websites, to copy and republish Instagram users’ content without obtaining a license.

According to the class action lawsuit both Hunley and Scott Brauer uploaded their content to Instagram with the expectation that the company would “honor, protect and respect their copyrighted works.”

However, Hunley had her photo embedded from Instagram into a BuzzFeed, Inc. post about the 2020 George Floyd protests without her permission or a license, the claim states. Scott Brauer had his photograph that was posted on Instagram embedded into a post by Time.com on the 2016 presidential election without his permission or a license.

“He is the owner of copyrighted works that have been unlawfully embedded from Instagram without his permission, a license or other valid legal defense, and for which Brauer has not been compensated,” the claim states.

According to the claim, Instagram’s use of the embed tool violated each user’s exclusive display rights and used copyrighted works to Instagram’s benefit. It adds that Instagram misled users, causing them to believe it would protect and respect copyright owners’ works based on Instagram’s terms of use.

“Instagram intentionally and brazenly encouraged, aided and induced third party embedders to cause to be displayed copyrighted photos and videos without making any effort to control or stop the rampant infringement occurring on its platform while knowingly participating in such conduct,” the class action lawsuit alleges.

Hunley and Scott Brauer allege that the company did so to maximize its and its parent Facebook’s “insatiable drive for user volume and the resulting advertising revenue.”

“The more Instagram could induce and encourage third parties to embed copyrighted works from Instagram, the more revenue Instagram generated from traffic and advertising revenue.”

The claim states that Instagram misled the public to believe that anyone was free to get on Instagram and embed copyrighted works from any Instagram account, “like eating for free at a buffet table of photos, by virtue of simply using the Instagram embedding tool.”

“Instagram, by acts of commission or omission, also misled third parties to believe that they did not need to obtain a license or permission from the copyright owner to embed those works.”

However, in June 2020 Instagram publicly admitted via a Facebook spokesperson that third parties in fact needed to secure a license or permission from the copyright holders to embed copyrighted works. According to the claim, Instagram knew or recklessly disregarded that no third party ever obtained a license or permission from Instagram to embed a copyrighted photo or video between 2013, when the embed tool was launched, and 2020.

Hunley and Scott Brauer want to represent anyone whose copyrighted work has been embedded through an Instagram post without their permission. They are suing for copyright infringement and seek certification of the Class, damages, injunctive relief, interest, legal fees, and a jury trial.

Instagram was also hit with a separate class action lawsuit in late 2020 for allegedly collecting, storing and profiting from users’ biometric information without written notice or consent.

Do you use Instagram? Are you concerned about where your photos end up? Let us know in the comments section!

The photojournalists are represented by Solomon B. Cera, Thomas C. Bright, and Pamela A. Markert of Cera LLP; Todd Friedman and Adrian R. Bacon of the Law Offices of Todd M. Friedman PC; James H. Bartolomei III of Duncan Firm PA; and Bryan D. Hoben of Hoben Law.

The Instagram Copyright Infringement Class Action Lawsuit is Hunley et al. v. Instagram LLC, Case No. 3:21-cv-03778, in the U.S. District Court for the Northern District of California.

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