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Instagram Beats Infringement Case for Embedded Images: Corporate Social Media Departments Take Note

October 19, 2021 by in Hot Issues

By Nikki R. Breeland, Esq.

Recently, Instagram was hit with a major class action lawsuit for copyright infringement for its “Embedding Tool” feature.[1] According to the complaint by photojournalists Alexis Hunley and Matthew Scott Brauer, Instagram created the Embedding Tool to display copyrighted works of Instagram users on third-party publisher websites to make more money for its parent company — Facebook.  

The photojournalists brought this class action lawsuit to recoup damages for their own copyrighted images that were infringed as a result of this Embedding Tool. Photojournalist Hunley posted a photo of the 2020 George Floyd protests to Instagram, which BuzzFeed then embedded into an article[2] about the protests without a license from Instagram or Hunley.

In addition, photojournalist Brauer posted a photo from the 2016 presidential election that was embedded into a article,[3] without permission from Instagram or Brauer.

The class action claims included direct, contributory, and vicarious copyright infringement. The complaint did not provide the damages amount sought, but rather requested actual or statutory damages, an injunction preventing Instagram from sharing copyrighted images as well as assisting others in doing so, the creation and implementation of a tracking tool to assist copyright holders in protecting their works, disgorgement of profits obtained from the infringement, as well as other costs, relief, and fees.

Instagram filed a motion to dismiss the claim based upon the Server Test,[4] a rule from the Ninth Circuit meant to avoid liability for those who display copyrighted works without storing the works on their own servers.[5] As such, Instagram then claimed that without the third-party websites being found liable for direct infringement, Instagram could not be found liable for secondary infringement.  

Interestingly, Instagram’s arguments served as the basis of the September 17, 2021, order from the Northern District of California.[6] The Northern District ruled that third-party sites who use the Embedding Tool are not liable for direct infringement due to the Server Test, thereby invalidating any claim for secondary infringement against Instagram for use of the Embedding Tool.[7]

This case follows several high-profile copyright infringement cases like the recent April 2021 case involving celebrity chef Nusr-et Gökçe, also known as Salt Bae.[8] In that case, Brooklyn artist William Hicks sued over the use of a mural the artist painted for the chef that the chef’s company used on all his merchandise branding. The artist in this case has requested a $5,000,000.00 judgment.

While the class action suit against Instagram presents a powerful example of a social media platform disregarding copyright rights for personal gain and getting away with it, the unlawful practices that some businesses use to boost their businesses are equally disturbing and may not be as successful. Though the names dropped in this case are mostly news outlets, more subtle, non-news commercial activities can still result in significant liability for the improper use of unlicensed copyrighted images. 

We believe these types of cases could begin to have broad implications for other companies that utilize Instagram posts of third parties to promote their products and services.

SLG has extensive experience advising clients on how to avoid costly pitfalls on social media in the context of copyright, trademark, rights of publicity, and other intellectual property rights.  For more information on how SLG can assist your business, please contact SLG at

Posted: October 19, 2021

[1]   Hunley v. Instagram, LLC, 3:21-cv-03778-CRB (N.D. Cal. 2021), Dkt. #1.

[2]  Id. at Exhibit A.

[3]   Id. at Exhibit D.

[4]  Perfect 10, Inc. v. Amazon, 508 F.3d 1146 (9th Cir. 2007) (Here the 9th Circuit determined that to avoid liability for infringement, the test is whether or not the allegedly infringing content is hosted on the defendant’s servers.).

[5] Interestingly, however, in a recent Southern District of New York case, Nicklen v. Sinclair Broadcast Group, Inc., the Southern District of New York decried the Server Test, stating it            “makes the display right merely a subset of the reproduction right.” Nicklen v. Sinclair Broadcast Group, Inc., 20-cv-10300 (S.D.N.Y. 2021), Dkt. #102. While the Sinclair case did not have influence on the Instagram case in the Northern District of California, it is important to note for those working with copyrighted works in the State of New York.

[6]  Hunley v. Instagram, LLC, 21-cv-03778-CRB (N.D. Cal. 2021), Dkt. #27.

[7]  Id. at 2.

[8]  Hicks v. Nusret, 1:21-cv-03148-VSB (S.D.N.Y. 2021), Dkt. #1.

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