A federal court (SDNY) has just ruled that a case must be dismissed because the photographer-plaintiff had posted the work on Instagram, with the account “public,” so the photographer granted a license to Instagram that included permitting Instagram to re-license it, including to the defendant (THR article about the ruling, here). So, the defendant (Mashable) had a license to display the photograph at issue via the Instagram API, and thus the case was dead.
In other words, there was no infringement by the defendant since the photographer posted the work publicly on Instagram. YIKES!
Now, this ruling does NOT say that it would be okay for a defendant to copy or download a photo it saw on Instagram and use it on its website for any purpose, but the door is open to defendants to try that, even if it might not be a winner. Here, Mashable used Instagram’s API to embed the work into its story; those facts may be the key points, but the terms of service for Instagram are very broad and, frankly, I’m surprised there hasn’t already been this result. Defendants will lock on this ruling and argue it, even in cases where the facts do not include API use.
While this is just one court, the implications are profound and, frankly, something I have predicted for some time. Also, remember that Facebook is as bad.
I know many of you would argue that you won’t be seen unless you use these platforms. I have to tell you that is simply not true and rather are stories told by the platforms and by clients/users, neither of whom have your best interests in mind. While sure, you don’t want to make things hard on your clients, you must balance that with what risks are reasonable (or not) for your business.
In my opinion, best practices for visual artists, especially photographers, is not to use Instagram or Facebook to display work. Keep your work on your own servers or use a reputable tool/host like PhotoShelter. If you have Instagram or FB accounts, I suggest deleting them asap and leaving a post directing your followers to your own website, instead. If they ask why, tell them you value your work and can’t afford to give away your rights.