5/7/2023 0 Comments Elliot blown away instagram![]() The lawsuit was filed in the Southern District of New York. Newsweek subsequently embedded McGucken’s Instagram post of the photo without his permission- meaning that readers could see the entire Instagram post, linking back to McGucken’s Instagram, in the body of the article.Īfter some apparently unsuccessful attempts by his counsel to email the Defendant a cease and desist letter, McGucken sued for infringement, alleging unauthorized reproduction and display of his photo. Although he is quoted in the article, McGucken did not, according to court documents, respond to Newsweek’s request asking for permission to use his photo. Later that month, Newsweek published an article on its website about the phenomenon of ephemeral lakes in Death Valley. In March 2019, fine art photographer Elliot McGucken photographed a rare ephemeral lake in Death Valley National Park and shared his photo on his public Instagram account. This Advisory analyzes the court’s decision and its implications for online publishers and content creators, from both litigation risk and transactional perspectives. The decision adds to a growing line of cases that reject the “server test,” on which online publishers have commonly relied to avoid copyright liability since it was established fifteen years ago by the Ninth Circuit. ![]() The court further held that neither party was entitled to summary judgment on the issue of whether Newsweek’s posting was protected by fair use, nor on whether, by virtue of Instagram’s then-extant Terms of Use, McGucken had given Instagram the right to sublicense his content for use by other Instagram users, such as the Defendant. In its decision, the court rejected the news magazine’s “server test” defense, finding that the publication could still be liable for unauthorized display of the photograph even if it never stored the Plaintiff’s image on its own computers. On March 21, 2022, the court denied both sides’ motions for summary judgment. Newsweek LLC, McGucken, a photographer, had sued Newsweek for copyright infringement after Newsweek embedded McGucken’s Instagram post in an online news article without his permission. ![]() In the closely-watched case of McGucken v. The court also decided that balancing the fair use factors can itself be a task for the trier of fact, making it more difficult to resolve a fair use defense before trial.The court decided that Instagram’s ambiguous “Terms of Use” in effect at the time did not provide a clear license for users to embed content uploaded by another user updated terms may make this defense even less tenable for future litigants.On March 21, Judge Failla of the Southern District of New York concluded that “embedding” Instagram content qualifies as infringement of a copyright owner’s right to control the “display” of their works, rejecting the Ninth Circuit’s server test.
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