I blogged earlier this summer about McGucken v. Newsweek, a case that involved a media defendant who was sued by a photographer because it embedded (and displayed) photos in an online article.

Newsweek asked the court to reconsider its ruling that the Instagram terms do not contain an express sublicense. It pointed the court to Instagram’s “Embedding Policy,” which included the following language:

Embedding Instagram posts is an easy way to add Instagram photos and videos to the stories you want to tell on articles or websites. You can embed your own content as well as photos and videos from public profiles. [emphasis added]

The court declines to reconsider its earlier ruling. Apart from Newsweek’s failure to satisfy the high threshold necessary for reconsideration, the court is not persuaded that the language above is a license. Rather, the court says: “[the language] is an explanation of what embedding technically allows users to do.”

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Recall that in the prior post on this case, I noted that Instagram said on the record that it does not grant a sublicense to users.

All hope is not lost for Newsweek. A non-exclusive license does not have to be in writing. Newsweek is not limited to arguing that language in a written Instagram policy reflects an intent to grant a sublicense. Moreover, perhaps it can persuade the court to revisit the above-quoted language after the benefit of discovery. (While the policy uses the word “can” instead of “may,” it seems odd to provide detailed instructions on how to do something in the absence of permission to do the thing.)

It will be interesting to see what discovery will look like in this case, and there are some fun evidentiary issues lurking in the background. Will the parties ask Instagram executives what Instagram intended? Will they argue that a reasonable user in Newsweek’s position would have understand there was a grant of a sub-license? Will Instagram’s later public statement be legally relevant? The parties will certainly be coming through the public record looking for other pronouncements by Instagram on the embedding feature.

McGucken v. Newsweek LLC et al., 2020 WL 6135733 (S.D.N.Y. Oct. 19, 2020)

Technology and Marketing Law Blog —October 25, 2020