The 9th Circuit Federal Appeals Court recently held that Instagram did not violate the copyrights of two photographers when news outlets shared the photographers’ photos using Instagram’s embedded images share feature.

The photographers, Alexis Hunley and Matthew Brauer, captured photos of a 2020 Black Lives Matter protest and Hillary Clinton (respectively) and posted the photographs on Instagram. Buzzfeed News and Time then published stories, embedding Hunley and Brauer's photograph into the stories.

Hunley and Brauer collectively sued Instagram in federal courts in California, alleging that Instagram infringed on their copyrights in such photographs when Instagram allowed Buzzfeed News and Time to embed the photos. The photographers argued that Instagram never received permission from the photographers for their photos to be embedded by third parties and Instagram never told third parties (including the news outlets) to obtain a license before embedding the photos.  

Instagram argued that embeds from its site were not direct copies of the works and therefore did not constitute copyright infringement. The 9th Circuit agreed with Instagram, holding that an embed version of a photograph is "just" the HTML code, rather than a copy of the photo.

This decision is a change in previous rulings so we expect there could be more to come from higher courts on this issue.