Evolving Court Views on Content Embedding

In the age of social media, thousands of images, articles, videos and recordings are brought to public attention through private citizens, organizations and even the president of the United States, using social media and digital platforms. Digital media exists in the form of everything from memes to news reports to company blogs. Although first launched only in 2010, over 45 billion photos have been shared on the Instagram social media platform. It is currently one of the top five visited applications on the Internet. See, www.thefactsite.com. Instagram clearly has become a critical vehicle for professional photographers, artists and other content providers to share their work and connect with licensees.

At the same time, Instagram has also become one of the most critical venues for corporations looking to promote their companies and their brands, with National Geographic, Nike, Victoria's Secret, 9GAG and Nike Football providing five of the most visited sites on Instagram. Seeking to add content and interest, owners of many Instagram sites use the Instagram-provided "embed" feature to post Instagram content in blogs and on their sites. Find a photograph on Instagram of actor Hugh Jackman and his French bulldog strolling the streets of SoHo sharing a lactose-free frozen treat? Frequently, that photo was then embedded on a post for the non-dairy treat company. But, one may ask, doesn't a photographer own the rights to that image? Doesn't the company need a license?