Photographers Appeal Loss to Instagram in Derivative Copyright Action

Late last week, two individuals appealed a dismissal order to the Ninth Circuit, arguing that Instagram indirectly infringed their copyrights by allowing third parties to repost their visual content without compensation and in violation of the Copyright Act. 

In particular, the putative class action concerns the plaintiffs’ copyrighted images posted to Instagram then “embedded” on several third party websites, including those operated by Buzzfeed and Time. The plaintiffs said that Instagram’s embedding mechanism, through which third parties can copy the Hypertext Markup Language (HTML) code of an Instagram user’s post and paste it into another website, causing the photo or video to be simultaneously displayed on the third party website, effectuates secondary copyright infringement.

On Sept. 17, 2021 the Northern District of California court granted Instagram’s motion to dismiss, as Law Street Media previously reported. Judge Charles R. Breyer ruled that under binding Ninth Circuit precedent, the plaintiffs established no “underlying direct infringement by a third party.” The opinion explained that pursuant to Perfect 10, infringers violate copyright holder’s rights only if a copy of the image is stored on a computer storage device.

The court declined to distinguish Perfect 10, noting that Google’s HTML embedding technology in that case was remarkably similar to Instagram’s in the present case. Judge Breyer advised the plaintiffs to appeal, noting that “some courts outside of the Ninth Circuit disagree with Perfect 10.”

The plaintiffs filed an amended complaint instead. They asserted that the case is unlike Perfect 10, because, and among other things, that decision “‘d[id] not address whether an entity that merely passively owns and manages an Internet bulletin board or similar system violates a copyright owner’s display and distribution rights when the users of the bulletin board or similar system posts infringing works.’”

Instagram sought dismissal with prejudice, arguing that serial amendments would not better the plaintiffs’ cause. In its second dismissal opinion issued in February, the court found that the repleaded complaint suffered from the same fundamental defect. As before, Judge Breyer suggested that the litigants appeal if unhappy with the result.

The appellants have done so and will now test the case before the Ninth Circuit. They are represented by Cera LLP, Law Offices Of Todd M. Friedman P.C., Duncan Firm P.A., and Hoben Law. Instagram is represented by Durie Tangri.