More and more often nowadays, celebrities are being sued for posting pictures of themselves on Instagram. While this does not make much sense to many of us, posting a picture on social media that you did not take without permission from the photographer can result in copyright infringement charges.

Actress and singer, Jennifer Lopez, is the latest celebrity to be hit with a copyright infringement suit. Lopez and her production company are being sued for over $150,000 in damages by photographer Steve Sands, who alleges that Lopez posted a photo taken by Sands on Instagram. Sands contends that Lopez and her production company did not license the photograph from Sands or have permission from Sands to post the photo.

While the average person may do something similar and get away with it, celebrities often will not, due to the significant number of likes the photo receives and the celebrity’s large number of social media followers. Some say celebrities post these images to brand themselves without permission from the taker of the photo.

This is not the first time Lopez has been sued for posting. Lopez was sued by Splash News and Picture Agency for $150,000 in October 2019, when she posted a photo taken by the company of her now fiancé, Alex Rodriguez, in her Instagram story in 2017. Splash News alleged they were the owner and exclusive copyright holder of the picture.

The Copyright Act protects the rights of Connecticut photographers by prohibiting others from using their photos for promotion without consent. However, there are exceptions that allow use of another’s photos in certain circumstances.

The post Jennifer Lopez Sued for Copyright Infringement appeared first on The National Law Forum.

User beware – you will be held to a social media platform’s terms of use. Most people are aware by using a social media platform that they give up some rights to the content that they share. What rights and to what extent depends on the platform and the specific terms of use.

A district court in the recent Sinclair case found no copyright infringement by the website Mashable, where it used one of photographer Sinclair’s Instagram photos in an article, even after an unsuccessful attempt to license the photo directly from Sinclair. Sinclair v. Ziff Davis, LLC, and Mashable, Inc., No. 1:18-CV-00790 (S.D.N.Y. April 13, 2020).

Plaintiff Sinclair had a “public” Instagram account and posted a copy of the subject photograph. Defendant Mashable, a digital media and entertainment platform, published on its website an article about female photographers that embedded the publicly posted photo from Sinclair’s Instagram account. Notably, prior to using the Instagram photo, an employee from Mashable contacted Sinclair about licensing the same photo to be used in the article. Sinclair declined Mashable’s US$50 offer to license the use of the photo. Sinclair later demanded that Mashable remove the embedded photograph from their website and demanded compensation. Mashable refused. Sinclair then sued for copyright infringement.

Sinclair argued that Mashable infringed her copyright in the photo since it did not have permission to use the photo. Mashable contended that it had a valid sublicense from Instagram to use the photo and therefore did not infringe Sinclair’s copyright. The court sided with Mashable.

By creating an Instagram account, Sinclair was bound to Instagram’s Terms of Use, which grant Instagram the right to sublicense content that is posted and made public by the user. Instagram then exercised that right by granting Mashable a sublicense to display the photo through sharing the embedded photo. Instagram utilizes API (application programming interface) which allows users to share public content posted by other users. The Instagram policies allow users to use API to embed posts on their websites.

The court held that Sinclair’s right to license the photo directly and Instagram’s right as a licensee to sublicense the photo to Mashable were independent from one another.

Sinclair also contended that the authorization of Instagram to sublicense the photo was invalid because of the complex and interconnected documents which established the rights. While the court agreed that Instagram could make their terms of service and policies more concise and accessible, they were under no obligation to do so.

Lastly, Sinclair argued that it was unfair of Instagram to force a professional photographer to choose between keeping her work “private” on one of the most popular photo sharing apps or to post publicly which would allow Instagram a sublicense to her photographs to users like Mashable. While the court noted this dilemma was very real, the court held that Sinclair had already made her choice by opting to post the photo publicly.

The court also noted that because it held that Instagram had granted Mashable a valid license to display Sinclair’s photo, it did not have to reach the question of unsettled law in the circuit of whether embedding an image is considered a ‘display’ capable of infringing a copyright in an image. That issue was addressed on a motion for summary judgment in Goldman v. Breitbart News Network LLC et al., 1:17-CV-03144 (S.D.N.Y. February 15, 2018), where the court came to the exact opposite conclusion.

In the Goldman case, a different Judge in the same jurisdiction held that the use of embedded Tweets on news media websites featuring a picture of Tom Brady did infringe the copyright of the photographer. The decision for partial summary judgment in favor of the photographer in the Goldman case was highly criticized, and the case ultimately settled outside of court.

While this case affirmed that use of a public Instagram photo as embedded in an article on a third-party website is covered by Instagram’s Terms of Use, this ruling does not necessarily mean that Instagram’s terms grant a blank check regarding the use of publicly posted content. This ruling addressed a specific use of an embedded photo, but did not touch on a litany of other potential concerns when using another’s photo posted publicly on the platform, such as right of publicity, unfair competition, false sponsorship or affiliation, or trademark infringement.

The post Photographer Unsuccessful in Copyright Case Over Use of Embedded Instagram Photo appeared first on The National Law Forum.

This week marked the conclusion of the first prosecution under the Criminal Law Amendment (Intimate Images) Act 2018 (WA). Mitchell Joseph Brindley, 24 years old, pleaded guilty to posting ten intimate images of the woman he dated. The images were taken with the woman’s consent whilst they were in a relationship. When it ended, Mr Brindley created fake Instagram accounts under her name and posted the images without her consent.

Non-consensual intimate image dissemination is colloquially known as ‘revenge porn’. A study in 2017 found that 20% of Australians between the ages of 16-49 years had a picture or video of themselves shared without their consent.

A global movement has emerged to counter the surge of ‘revenge porn’.

All Australian states and territories (except Tasmania) have implemented intimate image legislation. The WA Act amends the WA Criminal Code by creating a new offence relating to the non-consensual distribution of intimate images, empowering courts to make an order requiring a person to remove the images, and ensuring that existing threat offences apply.

Mr Brindley was this week given a 12-month intensive supervision order. The Magistrate found that the case fell in the least severe of the four categories of image-based abuse, being relationship retribution. More severe cases involve “sextortion”, “voyeurism” and “sexploitation”. The Magistrate said that if Mr Brindley’s crime had been motivated by sexual gratification or to obtain money, he would have received a jail term.

In April, videos emerged of NRL players engaging in sexual acts with women. Although the case involving player Tyrone May is ongoing, it will be interesting to see the outcome of any sentence, particularly if a jail term is sought.

The post Not Just For Jilted Ex-Lovers: The Criminalisation of the Non-Consensual Distribution of Intimate Images in Western Australia appeared first on The National Law Forum.