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To Embed, or Not to Embed, that is the Question
While the sound distracting you hear from this article may well be William Shakespeare rapidly turning in his grave like the Mad Hatter Teacup Ride at Disneyworld, recent legal and procedural developments associated with the ubiquitous Instagram social media site have created significant practical and legal risks for both copyright owners and account holders that would have even vexed the Bard himself. To provide a context for these risks, as well as some options for addressing them, this article examines the history of using copyright-protected content on the Internet, uncertainty for content owners and sites created by courts in some recent cases, and difficult options and potentially costly litigation with a potential for loss of rights now facing content and site owners given those cases.
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, and it is currently one of the top five visited applications on the Internet. See, www.thefactsite.com. While pictures of food and selfies constitute a not insubstantial portion of those numbers, Instagram has also 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. Id. Seeking to add content and interest, owners of many Instagram sites have used the Instagram-provided "embed" feature to post Instagram content in blogs and on their sites. Find a photograph on Instagram of 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?
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