Case Name: McGucken v. Newsweek LLC et al
Court: United States District Court – Southern District of New York
Date of Opinion: March 21, 2022
Judge: Katherine Polk Failla
Overview: Judge ruled that case involving Instagram embedding copyright action should continue, denying plaintiff’s motion for summary judgment and denying defendant’s motion that it did not infringe on the plaintiff’s copyright.
Background: This case involves a claim for copyright infringement. The plaintiff, Elliot McGucken, a professional photographer, visited Death Valley National Park and took a picture of a rare ephemeral lake. He subsequently posted his picture on Instagram. The defendant, Newsweek, published an article about the lake and embedded the photograph that was taken by McGucken. McGucken filed suit against Newsweek, alleging that it reproduced his photograph without consent.
The court has already issued an order on this case, dismissing the plaintiffs claims of contributory and vicarious infringement, but allowed his claim of direct copyright infringement as well as enhanced damages to continue.
McGucken filed a motion for summary judgment pleading that Newsweek should be held liable for copyright infringement. Newsweek replied that it did not actually infringe on McGucken’s exclusive rights, that it had a license to embed the Instagram post, and that its use of the post is fair use.
Newsweek argues that it did not actually “display” the photograph, only copied the embedding code in the post, and pasted it on its website. The court disagreed with the defendant on this point, stating that it did, in fact, display the photograph when it embedded it into the article.
Newsweek also argues that it had a sublicense to display the photograph in its article, but the plaintiff replied that Instagram’s terms are unambiguous that third-parties must obtain permission to use Instagram content. The court opines that Instagram’s Platform Policy did not grant the defendant a sublicense to embed the photograph. However, the court also states that since a reasonable factfinder could conclude that the Platform Policy did grant the defendant the sublicense, the plaintiff’s motion for summary judgment will also be denied.
Conclusion: The court denied both motions filed by the parties.
Steven M. Cohen
Steven M. Cohen is a law librarian at a midsize law firm in New York City. He was the creator of Library Stuff, one of the first library blogs, which lasted over 15 years. He obtained his MLS from Queens College in 2002. His passions include legal research, reading novels, and rooting on his favorite sports teams.