The case is on trial in the United States and involves photographer Elliot McGucken and Newsweek magazine.
Photographer Elliot McGucken took a rare photo of a lake in Death Valley. Usually, Death Valley is dry, but occasionally heavy rain creates a considerable mirror of water. Newsweek asked to license the image, but McGucken declined the offer. Then, Newsweek incorporated the photo posted by McGucken himself on Instagram.
The photographer did not like the magazine’s attitude and filed a lawsuit alleging breach of copyright. In response, Newsweek said it did not need to license the image since it was indirectly covered by Instagram’s privacy terms.
The magazine’s lawyers cited a similar case involving Mashable and photographer Stephanie Sinclair. In this case, the website claimed that she granted the copyright to Instagram and he can sublicense the photo to any other company or user:
Instagram’s terms of service require anyone who uploads photos to provide a copyright license to the social network, including the right to sublicense the same rights to other users.
However, the judge in the case involving Newsweek and McGucken ended up granting an injunction in favor of the photographer. She maintained that there is no evidence that Instagram terms actually allow photos to be incorporated without the need for copyright.
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Commenting on the matter, Instagram itself explained that its embed tool does not provide an automatic license. This means that you still need to request permission from the photo owner. However, the company’s message contradicts what has been said in other processes. For the time being, the case has not yet come to an end because there is an appeal in higher courts.
