Blurry Instagram Rules: Sinclair and McGucken

By Marla Katz.

In the first half of 2020, the global spread of COVID-19 prompted a change in the business models of artists, galleries, museums, and the like. Artists and institutions of art and cultural heritage pivoted online, substituting in-the-flesh experience with constant virtual traffic and viewership.^[1] Although some art consumers are now craving in-the-flesh experience, virtual exhibitions, auctions, and sales initiated through websites and social media are keeping the art market alive through e-commerce.

Despite the current “life line” effect of social media in supporting visual artists, Sinclair v. Ziff Davis, LLC suggests that the nuances of broad platform policies and the competing interests of users have posed challenges for the courts. In mid-April of 2020, the Southern District of New York dismissed the case filed by professional photojournalist Stephanie Sinclair against online magazine Mashable, Inc. and its parent company Ziff Davis, LLC.^[2] Sinclair alleged that Mashable and Ziff Davis infringed her copyright by embedding a photograph, previously posted to her public Instagram account, in an article without her consent.^[3] The Southern District held that the conduct did not constitute copyright infringement because Sinclair agreed to Instagram’s Terms of Use (“TOU”), which it interpreted to allow Instagram to sublicense public content to third-parties, such as Mashable, for the purposes of embedding.

A few weeks after Sinclair was decided, the Southern District reached an opposite conclusion in a case with a similar fact pattern, McGucken v. Newsweek, LLC. On June 1, 2020, the court found that, while Instagram’s TOU grant Instagram a sub-licensable license to public content, there was no evidence of a sublicense between Newsweek and Instagram.