The judge sides with the photographer in the Instagram integration trial

An Instagram embedding lawsuit against Sinclair Broadcast Group for embedding and posting a screenshot of a viral video without permission will continue, a judge in the Southern District of New York has said.

Sony nature photographer and craftsman Paul Nicklen shot a video of a starving polar bear in 2017, a work that went viral with a message about global warming. Sinclair Broadcast Group posted about the viral status of the video, but did not first obtain a license before integrating the Instagram post and using a screenshot of the video. On July 30, US District Judge Jed S. Rakoff dismissed the defendants’ motion to dismiss the case, stating that “the Court’s fair use analysis would benefit from a better developed factual record.” The dismissal moves the case forward for a new court decision.

[Read: Instagram’s Bombshell on Copyright for Embedded Images]

In the decision against the early dismissal, Rakoff looked at both copyright law and the server test. The defendants argued that the embedding of the video did not fall under the “display” rules of copyright law. The judge said, however, that both the text of the Copyright Act and previous cases establish that the embedding of a video constitutes a presentation of a work. He noted that the “copyright law is technologically neutral” and covers formats that were developed after the law was passed in 1976.

The defendants also asked for termination (which, again, was denied) on the grounds of the server rule, which, in short, says that copyright infringement requires a website registering the copyrighted work by copyright on their own server. In the case of an Instagram integration, no copy of the photo or video is uploaded and saved, it remains stored on Instagram servers.

[Read: Court Reopens Photographer’s Lawsuit Against Mashable]

The judge says, however, that the Copyright Act and the server rule are contradictory. “Under the server rule, a photographer who promotes his work on Instagram or a filmmaker who posts his short film on YouTube cedes control over how, when and by whom his work is then shown, thus reducing the right display, indeed, to the limited. first production right which the 1976 copyright law rejects, ”the judge wrote. “Defendants Sinclair argue that an author wishing to maintain control over how a work is shown could refrain from sharing the work on social media, pointing out that if Nicklen removed his work from Instagram, the video would disappear from sites Sinclair Defendants’ Web because fine, but copyright law cannot grant authors an exclusive right to display their work publicly only if that audience is not online.

The video was shared with a caption indicating where the video was licensed and how to license it for commercial use. The judge also said that the use of video in articles was commercial because the websites are for-profit news stations that profit from web traffic. Debating further on the merits of fair dealing, the judge noted that the news articles used the video in its entirety.

Last week’s ruling means the case will move forward for the use of the video and how the law applies will still be debated in court. The case is one of many recent lawsuits arising out of whether the embedding of a work constitutes copyright infringement. Currently, Instagram does not allow users to turn off the ability to embed posts. Last year, the company said the platform “requires third parties to have the necessary rights from applicable rights holders.”


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