Instagram’s statement is likely to play a pivotal role in an ongoing case that could set a precedent for how people can use the feature. In 2019, Newsweek asked physicist and photographer Elliot McGucken to publish a photo he took of a temporary lake in Death Valley. After McGucken refused to license the photo, Newsweek embedded the picture instead. McGucken then sued the publication for copyright infringement, arguing it had shared the photo without his permission. Newsweek counter-argued that it had obtained the right to use the picture through Instagram. When you agree to the app’s terms of service, you give the company a copyright license to any photos you upload to the platform. You also agree to sublicense your content to other Instagram users. Newsweek argued that the license extended to its use of the embed tool. In April, Mashable won a similar case on the back of essentially the same argument. However, in a ruling earlier this week, the judge presiding over the McGucken case refused to dismiss the suit, setting the stage for a further legal battle.
While professional photographers are likely to welcome Instagram’s announcement, it’s hard to guess what effect this policy will have on regular users. Unless the company goes out of its way to highlight the policy clarification, most people won’t know that they need to obtain permission before they can embed someone’s photo. Instagram also told Ars Technica it’s exploring ways to give users more control over who can embed their photos. If Instagram disables embeds or you can get sued for using the feature without permission, it would at the very least dramatically reduce the amount of Instagram content you see outside of the app.
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