Sinclair v. Ziff Davis, LLC

District court grants plaintiff photographer’s motion to reconsider dismissal of copyright case against defendant news site that embedded link to plaintiff’s Instagram image, finding that while plaintiff granted Instagram right to use her public Instagram content, platform’s Terms of Use are susceptible to different interpretations regarding sublicenses.

Plaintiff, photographer Stephanie Sinclair, moved for reconsideration of the district court’s opinion and order dismissing her copyright case against defendants Mashable Inc., a media and entertainment platform that operates the website mashable.com, and its parent company, Ziff Davis LLC. The court granted plaintiff’s motion for reconsideration, concluding that in light of “persuasive authority…and in order to correct clear error,” plaintiff’s copyright claim could no longer be dismissed on the basis of a sublicense defense.  

Previously, the court ruled that Instagram’s Terms of Use automatically gave Mashable a sublicense to embed plaintiff photographer’s image in an article. (Read our summary of the district court’s prior dismissal here.) The court doubled down on this finding, stating that “by agreeing to Instagram’s Terms of Use, [p]laintiff authorized Instagram to grant API users, such as Mashable, a sublicense to embed her public Instagram content, as set forth in Instagram’s Platform Policy.” However, the court acknowledged that “[i]n reaching this conclusion, the [c]ourt did not give full force to the requirement that a license must convey the licensor’s ‘explicit consent’ to use a copyrighted work.”  

In a June 2020 decision in McGucken v. Newsweek LLC, a different Manhattan federal judge denied Newsweek’s motion to dismiss a copyright case based on Instagram’s Terms of Use, concluding that while “it may be possible to read Instagram’s various terms and policies to grant a sublicense to embedders,” when drawing all reasonable inferences in plaintiff’s favor, the court could not find that defendant acted pursuant to a sublicense, either explicit or implied, from Instagram.

Considering McGucken, the district court reasoned, Instagram’s Platform Policy statement was susceptible to competing interpretations and was therefore insufficiently clear to “warrant dismissal of Plaintiff’s claims at this stage of litigation.” The court amended its previous decision, now holding that “the pleadings contain insufficient evidence to find that Instagram granted Mashable a sublicense to embed Plaintiff’s Photograph on its website.”  

While the court granted plaintiff’s motion for reconsideration on this issue, the court “adhered to its prior holdings in all other respects.” The court maintained that “Plaintiff failed to state a claim of copyright infringement against Ziff Davis” because “pleading that Ziff Davis controls Mashable, the alleged infringer, is insufficient to state a claim of copyright infringement against Ziff Davis.” 

Summary prepared by David Grossman and Lyndsi Allsop