Pause before posting: Thoughts on social media licensing terms from an IP professional

Monday, May 4, 2020


Beth Sheckler

Recently, The Hollywood Reporter and several other outlets highlighted the outcome of an alleged copyright infringement case, Sinclair v. Ziff Davis, in which professional photographer Stephanie Sinclair sued Mashable and its parent company Ziff Davis for using a photo from one of Sinclair’s Instagram posts in an article on the Mashable website. The court ruled in favor of Mashable, who used Instagram’s API to embed Sinclair’s images, which she had posted under the “public” setting on her account. The case was ultimately dismissed for Sinclair’s failure to state a claim upon which relief can be granted. There was no claim against Mashable, because the court recognized Mashable’s embedding as allowable under a valid sublicense from Instagram and dismissed against Ziff Davis because there was no unique claim directly against the parent company.

The Hollywood Reporter treats the outcome of the case as sensational and newsworthy, though the court ruling is unsurprising for those of us on the licensing side of creative works (like images and videos). As the licensing manager of creative and digital works for the University of New Hampshire, I negotiate dozens of image license deals with clients each year, especially for our famous Lotte Jacobi collection. I take a hard line regarding social media because the agreements on those platforms are terrible for creators and rights holders, as Sinclair discovered. The terms on most social platforms are so bad for enforcing rights-managed content that I generally don’t allow any images from our collections to be posted (think fully transferable, sublicensable rights, with the full battery of copyrights including derivatives. No, thank you).

Instagram is hardly the only offender. Facebook, Twitter, Tumblr, and Pinterest all have similar terms. Click through agreements on social media regarding what other users can do with your content demand very broad rights. Social media’s whole premise is content being shareable. The platforms understand and take advantage of the reality that users will agree to anything (if they read the agreement at all) to get access to each platform’s massive network of users and the exposure that provides, so they make those rights as far reaching and broad as they can stretch. And why wouldn’t they? Companies like Instagram and Facebook don’t operate in the public interest—they operate in their own interest. They are private companies and have no morality calculus to support art or protect artists and rights holders. If you want to protect your valuable assets, you need to understand the full weight of what it means to enter into a contract with conditions that are not in your own interest.

I feel sympathy for Sinclair, and I empathize with a desire for a change in favor of creators and rights holders. Although she lost, her suit was not a wasted effort. Her experience and her feelings about sharing creative work on social channels are common. It can feel like giant companies like Instagram and Facebook are necessary evils—like creators are trapped by a system that has no good options. But creators and rights holders have the choice to say “No.” Click-throughs are still agreements; if the other party won’t negotiate, the best deal is probably no deal at all. If enough creators and rights holders (especially influential players) refuse to put their content on platforms that don’t make reasonable concessions to their needs, the landscape might change. It’s high time we all read the fine print—and say “no” when the terms are not in our best interests. If we don’t fight for ourselves at the negotiating table, no one will. If anything, Sinclair’s case is a good place to start a productive conversation, and perhaps, inspire some overdue change, which may already be starting.