This correction crumbles Newsweek’s argument in the case of McGuken v. Newsweek, where Dr. Elliot McGuken, a photographer who focuses on landscape and seascape photography brought action against Newsweek for copyright infringement. Dr. McGuken alleges the publication reproduced and displayed the photograph on its website without his consent. Newsweek argues that Instagram’s platform grants them a sublicense to use the photograph and that the publication constituted fair use.
In a similar case, Sinclair v. Ziff-Davis, Mashable, Inc. attempted to receive permission from Stephanie Sinclair to use one of her photographs on its site, proposing a $50.00 license fee. Ms. Sinclair denied the publication of the license, but the company decided to embed the image via Instagram’s API anyways. This workaround was used to violate the copyright and wishes of Ms. Sinclair. Unfortunately, the case sided with Mashable, and Judge Wood ruled that “Here, [Sinclair] granted Instagram the right to sublicense the photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the photograph.” The decision in this case is clouded by this recent clarification by Instagram.
In response to Instagram's initial position prior to this statement, PPA signed onto a letter along with seven other visual creator groups requesting that the platform revise its policies to better reflect copyright law and modify the settings of the platform so users could limit the ability to embed. That was back in April, and now the platform walked back its position, at least its policy about granting sublicenses to users. So far, Instagram has not changed their ability for users to remain a public account but not allow embedding photos. That ability is limited to private accounts.
To learn more about copyright law, read Copyright Law: Understanding Your Rights as Photographer.