In common with content created in other fields, photographs generally enjoy protection under copyright law, allowing photographers to determine who can duplicate and/or distribute their work.
Photographers Alexis Hunley and Matthew Brauer posted several of their copyrighted works on Instagram. In January 2016, Time published an article titled ‘These Photographers Are Covering the Presidential Campaign on Instagram.’ Within that article, Time embedded one of Brauer’s Instagram posts, which contained a copyrighted photograph of Hillary Clinton to which Brauer owned the copyright.
In June 2020, during the Black Lives Matter protests, BuzzFeed News published an article titled “17 Powerful Pictures Of The Protests Through The Eyes of Black Photographers.” Within that article was a photograph taken by Alexis Hunley, displayed via an embedded post from Hunley’s Instagram page.
Time did not seek permission from Brauer or Instagram to embed the photograph of Hillary Clinton. BuzzFeed News did not seek permission or attempt to license Hunley’s photograph taken during the protests. Outraged at losing control over where their works appeared, Hunley and Brauer filed a class action lawsuit against Instagram for allowing their images to be displayed on third-party sites without permission from the copyright holder.
Copyright Claims Against Instagram
The photographers’ main target was Instagram, which Hunley accused of “intentionally and brazenly” encouraging and assisting third-party sites to display copyrighted works, while making no effort to stop the “rampant infringement”.
The complaint accused Instagram of inducement of copyright infringement, contributory copyright infringement, and vicarious copyright infringement. Time and BuzzFeed News stood accused of violating Hunley’s right of display. Hunley sought damages for the alleged infringement and an injunction to prevent further violations.
At the district court, the complaint was found to have fundamental flaws, which Instagram laid bare in its motion to dismiss. At BuzzFeed News, the location where Hunley’s image was displayed, there could be no violation of Hunley’s exclusive display right under the Copyright Act. To be found liable, an alleged infringer must display a copy of a copyrighted work; in this case, the photographs were embedded and were always stored on Instagram’s servers. The district court commented as follows:
“[BuzzFeed and Time] do not violate Instagram users’ exclusive display rights. Because they do not store the images and videos, they do not ‘fix’ the copyrighted work in any ‘tangible medium of expression.’ Therefore, when they embed the images and videos, they do not display ‘copies’ of the copyrighted work.”
All of Hunley’s copyright claims alleged secondary liability but such claims cannot exist when there is no direct infringement. Hunley’s original and first amended complaints both stated that Instagram hosted the images; that proved terminal as far as the district court was concerned. In February 2022, Hunley was denied leave to amend the complaint because the deficiencies were simply too great. The case was dismissed and Hunley appealed.
Court of Appeals for the Ninth Circuit
In an opinion published on Monday, the Court references its own decision in the Perfect 10 v. Amazon, Inc. (pdf) case in 2007.
Perfect 10, a publisher of copyrighted nude images, alleged that Amazon and Google infringed its rights when they displayed thumbnail images of Perfect 10’s photographic works. Google did not host or store the main images that appeared in users’ web browsers, they were embedded from the source servers, just like the photographers’ posts were on Instagram.
“Applying the Server Test to the facts, we concluded that Google’s in-line linking (what we now call embedding) did not display a ‘copy’ of Perfect 10’s copyrighted images as that term is defined in the Copyright Act,” the opinion reads. “Although ‘Google may [have] facilitate[d] the user’s access to infringing images,’ we concluded that ‘such assistance . . . does not constitute direct infringement.”
Hunley argued that the ‘Server Test’ should not apply to social media platforms but since “Perfect 10 states the rule for infringing the public display right using embedding” the argument was not considered. The opinion does rule out both direct and secondary infringement, however.
By posting photographs to her public Instagram profile, Hunley stored a copy of those images on Instagram’s servers. By displaying Hunley’s images, Instagram did not directly infringe Hunley’s exclusive display right because Instagram had a nonexclusive sublicense to display these photos.
Because BuzzFeed and Time embedded — but did not store — the underlying copyrighted photographs, they are not guilty of direct infringement. Without direct infringement, Hunley cannot prevail on any theory of secondary liability.
“For the foregoing reasons, we find no error in the judgment of the district court,” the opinion concludes (pdf)
