Instagram Strikes Again: Users Can Now Disable Embedding – Lexology

The embedding saga continues. The right to embed another’s photo or video that was posted on social media has been one of the most hotly litigated issues in copyright law over the past two-plus years. There is now a clear divide between the Second and Ninth Circuits over whether embedding a photo or video is an infringing public display under the Server Rule. (Hint: Second Circuit says yes, Ninth says no.) There is also a question of whether embedding is fair use. (Hint: it depends.) And there is a question of whether posting a photo or video on social media, such as Twitter or Instagram, grants a license to others to embed using the sites’ embedding API tool. Courts recently examining this issue generally concluded that, while posting the content grants a license to Instagram (with the right to sublicense), it is not clear whether Instagram exercises that right in its policy governing its API tool that allows other users to embed that content. My colleague Brian Murphy discussed this extensively and summarized in a graphic that I’m reproducing below (fair use, anyone?): Instagram itself allegedly weighed in on this issue last summer in an email from Facebook (er, Meta?),…
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