Another Court Says Embedding Instagram Photos May Be Fair Use–Boesen v. United Sports
This is another Instagram embed case. For my most recent post on that topic, see this post.
Plaintiff Boesen is a professional photographer. He captured an image of professional tennis player Caroline Wozniacki near the beginning of her career. Ms. Wozniacki posted a low resolution version of the photo to her Instagram page in the context of announcing her retirement.
Defendant, United Sports, publishes “Long Island Tennis Magazine,” among other sports publications. United Sports ran an online article on Wozniacki’s retirement. It quoted the text of Wozniacki’s post and summarized her career. United Sports also “embedded” Wozniacki’s post. (The embedded image is still up.)
Boesen then registered a copyright on the photograph and filed suit. After some procedural wrangling, United Sports brought a motion to dismiss and a motion for a bond. (United Sports also made an offer of judgment in June 2020.)
The court concludes that the embed by United Sports was fair use:
- “embedding an Instagram post featuring a copyrighted photo in an article reporting on the post itself is transformative” (citing Walsh v. Townsquare Media and discussing this issue in detail)
- The nature of the work factor carries “minimal” weight and tips slightly in United Sports’ favor (this photo has both “informational and creative” elements and is published, including by Boesen himself)
- Given that United Sports posted (embedded) the image as-is (as posted by Wozniacki) and was a low resolution version, this factor favored United Sports
- The fact that the embed appeared in the article makes it unlikely that it would be a substitute for the original. As would the fact that United Sports re-posted a cropped, low-resolution version. This factor also favored United Sports.
As to the bond request, the court notes that it has discretion to award fees to the prevailing party (United Sports). The court also invites United Sports to move for fees. While Boesen is in Denmark, his counsel (Liebowitz) is in New York and remains “accountable for ensuring compliance with [the court’s orders].” The court acknowledges that Boesen’s counsel has “violated court orders numerous times before.” But if the court does award fees, it says it “will not tolerate noncompliance with that order.”
Since this ruling, Boesen moved for reconsideration. United Sports filed a request for fees. The court put the fee request on hold while it resolves Boesen’s request to reconsider.
Bonus track: another case raising the propriety of Instagram embeds is Schroeder v. Volvo Group North America, LLC. It posted as an ad campaign, personal or portfolio images captured by a photographer. The photographer organized the shoot “to take advantage of the ‘super bloom’ of wildflowers in the high desert of Southern California.” The facts were not great for Volvo. First, it sought permission via an Instagram message and used the image despite being rebuffed. Second, its use of the photo was not limited to the Instagram platform. It also posted to Pinterest (although details are scant). Volvo raised the Instagram license in a motion that sought to have the court judicially notice 21 different exhibits. The judge denied the motion [pdf], and the case is in the discovery stage.
Instagram embeds have turned out to be surprisingly legally convoluted.
A few cases have said that embeds may be authorized by Instagram’s terms, but no case has clearly blessed this approach. In one case (Sinclair v. Ziff Davis), the court initially said the embeds were authorized by Instagram’s terms, but then it reversed itself on this issue. In another (McGucken v. Newsweek), the court says that Instagram could sublicense content that users post, but the terms do not unequivocally express an intent to grant a sublicense. As mentioned above, the court in the Schroeder case did not reach the issue at all. There is no case unequivocally saying that, to the extent the underlying image was posted with authorization from or by the owner/creator, any later embeds of that image in online stories are licensed.
Other cases have held that embeds may constitute fair use. Newsweek lost this issue in the McGucken case, but as the court notes in Boesen’s case, other courts have found fair use where warranted by the circumstances. Specifically, where the underlying post (with the image) is itself the story, the case for fair use is stronger. The court here spends some energy discussing this issue in the context of the Cardi B. case. Boesen is worth a read (and useful) for this point.
It would have been fairly straightforward to find that Instagram’s embed feature, coupled with its terms, result in a sublicense for use of content within the platform. As previously mentioned, Instagram oddly refuted this interpretation of its terms in a public statement to Ars Technica. So courts are left with fair use as an alternative basis to rule against these plaintiffs who bring claims based on embedded posts. Is the lack of a clear license from Instagram leading to helpful law on fair use?
This case was brought by Liebowitz, which presents separate drama. The negative orders for Liebowitz (and judicial comparing of notes) are piling up. The judge here does her best to invoke the “you do not want to piss off a federal judge” tone.
You don’t often see a bond request based on a possible fee shift at the outset of the case. The court did not award bond here, despite its comments on the conduct of plaintiff’s counsel. One wonders if this (seeking bond) is a tactic that defendants will invoke more routinely, or whether its reserved for cases involving prolific plaintiffs who may not have the ability to pay a resulting fee award.
Case citation: Boesen v. United Sports Publications, Ltd., 20-cv-01552_ARR-SIL (E.D.N.Y. Nov. 2, 2020)