Back in June, I wrote about a case concerning the issue of embedded social media posts, specifically Instagram. In that case, the court held that Instagram’s terms of use were insufficiently clear to allow users to escape liability for publishing Instagram content through the embed tool. The issue of embedded social media posts is still beckoning a uniform decision.

Embedding refers to the integration of links, images, videos, gifs, and other content into social media posts or other web media. Oftentimes, embedded content appears as part of a post as a link, encouraging increased engagement and improving the website user interface. Embedded social media content encourages visitors to follow the page, builds user trust, displays user-generated content, and increases brand awareness and engagement levels. Embedding is cost and time-effective while maximizing search engine optimizations (boosting rankings on SERP). On the other hand, embedded social media content sometimes results in inappropriate formatting or configuration issues. 

Social media companies––like Instagram––make it easy for companies to embed content directly from the social media application. For example, Mashable published an article, using Instagram’s embed feature, that displayed a photo taken by professional photographer, Stephanie Sinclair. However, this photo was not on Mashable’s internal servers, but rather remained stored on Instagram’s servers thus protecting Mashable from copyright infringement. In fact, Mashable’s listicles (as well as the fan-favorite BuzzFeed Listicles) are entirely premised on embedding content, whether as hilarious tweets or bizarre memes, as opposed to generating original content. 

Currently, a recent class action case filed by Plaintiffs Alexis Hunley and Matthew Brauer argues that Instagram’s feature (the “embedding tool”) enables third-party websites to display copyrighted content posted to an Instagram account. Thus, the embedding tool makes Instagram secondarily liable for those third parties’ copyright infringement. Specifically, the plaintiffs allege that Instagram allowed media companies to illegally embed images the plaintiffs posted to Instagram; the case focuses on specific images from the George Floyd protests and the 2016 election. Further, they claim that Instagram not only permitted, but went so far as to encourage the embedding of photos for their own monetary gain through advertising revenue. They assert that “[i]nstagram misled the public to believe that anyone was free to get on Instagram and embed copyrighted works from any Instagram account, like eating for free at a buffet table of photos, by virtue of simply using the Instagram embedding tool.” 

The fate of the embedding tool is yet to be decided, but social media companies, media companies like Mashable and BuzzFeed, and all social media’s users will be keeping a close eye on the Meta-decision.  

Works Cited:

Hunley et al. v. Instagram LLC, Case No. 3:21-cv-03778, U.S. District Court for the Northern District of California, https://casetext.com/case/hunley-v-instagram-llc. 

See https://www.bigcommerce.com/ecommerce-answers/what-is-embedding/ (providing the definition of ‘embedding’).