By John W. Scanlan, J.D.
A reasonable reader would understand that the "Embedding Policy" webpage on Instagram did not grant a sublicense because it was not, in fact, a policy but only a set of technical instructions to developers for embedding Instagram content on other websites.
The language of an "Embedding Policy" on Instagram’s website did not constitute an express sublicense granted by the photographer to a news magazine that would permit the magazine to reproduce one of his photographs on its web site, the federal district court in New York City ruled in denying reconsideration of its decision not to dismiss the photographer’s copyright infringement claims. The court stated that it had not failed to take judicial notice of the Policy but instead had found it irrelevant to its analysis (McGucken v. Newsweek LLC, October 19, 2020, Failla, K.).
Eliot McGucken is a photographer. In 2019, he posted to his Instagram account a photograph that he had taken of a lake that temporarily appeared in Death Valley. Newsweek embedded McGucken’s Instagram post in an article about that lake that it published the following day. McGucken subsequently registered the photograph with the U.S. Copyright office and sent a cease-and-desist letter demanding removal of the photograph. Five months later, because Newsweek had not removed the photograph, he filed copyright infringement claims against Newsweek.
In the present proceeding, Newsweek moved for partial reconsideration of the court’s decision. It argued that Instagram’s Embedding Policy contained clear evidence of an express sublicense between Newsweek and Instagram, and that the court would have discovered that if it had taken judicial notice of the Embedding Policy. Alternatively, Newsweek argued that it was not given a full opportunity to brief the issue of the existence of a sublicense.
Opportunity to address issue. The court also disagreed with Newsweek’s alternative argument that it did not have a full opportunity to address the sublicensing issue. Observing that Newsweek had the opportunity to make its arguments in its opening brief, its reply brief, and in its two briefs for the motion for reconsideration, the court stated that it "does not require further briefing on this subject" and would not grant a "second bite at the apple."
This case is No. 1:19-cv-09617-KPF.
Attorneys: Laura Maria Zaharia (Doniger Burroughs Law Firm) for Elliot McGucken. Nancy Evelyn Wolff (Cowan, Debaets, Abrahams & Sheppard LLP) for Newsweek LLC.
Companies: Newsweek LLC
MainStory: TopStory Copyright TechnologyInternet GCNNews NewYorkNews
Interested in submitting an article?
Submit your information to us today!Learn More
IP Law Daily: Breaking legal news at your fingertips
Sign up today for your free trial to this daily reporting service created by attorneys, for attorneys. Stay up to date on intellectual property legal matters with same-day coverage of breaking news, court decisions, legislation, and regulatory activity with easy access through email or mobile app.