So along comes a court ruling that makes photographers more anxious than they already are in this lethal time of quarantines, face masks and businesses shut down. Federal Court Judge Kimba Wood has issued a decision that has caused a large uptick in the consumption of adult beverages by photographers. Sinclair v Mashable Ziff Davis is not a favorable ruling to photographers in this unfavorable time. The good news – the sky is not falling.

This piece will attempt to provide you with at least two different views of the case in its entirety as well as with regard to key factors that “built” the case. Facts first and we don’t mind saying that distilling them into a few sentences is no small task.  Neither of us have any personal information or involvement with the case.  Ed and Jack have both read the key court papers and the Judge’s opinion.


Stephanie Sinclair is a professional photographer. She sued media companies Ziff Davis, LLC and Mashable, Inc. for willful copyright infringement. The original court complaint which contains the basic allegations was changed (amended) several times. Finally, the operative complaint alleged that Mashable sought to license an image created and copyright registered by Ms. Sinclair for a licensing fee of $50.00. She refused the offer made by Mashable and no further meaningful negotiations appear to have been had. The defendants are linked together in business in that Ziff Davis owns Mashable.

The image had been posted on Instagram (The 6,000 lb gorilla) and was embedded onto Mashable’s website by Mashable. After Sinclair denied a license or permission to use her embedded image, it (sort of) ran anyhow thanks to the agreement Ms. Sinclair had with Instagram’s Terms and Conditions when she signed up to use Instagram (as everyone is required to in order to use Instagram).

Judge Wood’s Opinion and Order (legalese for “decision”) which should be read in its entirety – linked here – Sinclair V Ziff Davis and Mashable opinion, held that Ms. Sinclair had granted Instagram the right to sublicence to Mashable. The plaintiff had agreed to Instagram’s convoluted terms and conditions which included the right to sub-license. Having agreed to Instagram’s “Terms of Use” (TOU) which included a, “grant to Instagram of a non-exclusive, fully paid, royalty free, transferable, sub-licensable, worldwide license to (the submitted Content)”. So, in effect when Ms. Sinclair refused to license the image to Mashable, Mashable obtained it from Instagram via a transaction that in Judge Wood’s opinion, was quite kosher under the terms of use that Ms. Sinclair had consented to with Instagram.

Courts rarely, very rarely overturn or “tear up” a contract between two commercial entities absent some illegality, fraud or duress.  Parties have ample opportunities to examine a proposed contract and if they can’t understand its terms for whatever reasons but still sign on anyway, the courts are not there to save the foolish from agreeing to things they don’t understand.

It is critically important to understand that this decision was made before any trial was had. Ms. Sinclair’s case was dismissed. In such circumstances the judge only has whatever papers placed before her by the attorneys. It is not the judge’s job to try to do factual research, consult with experts or do any outside reading. Judge Wood was limited to just the contents of the papers submitted by the attorneys, period. This decision resulted from a motion seeking to dismiss the case. Ed has read all the papers submitted by both sides in connection with the motion.

One of the reasons the two of us write this blog together is partly because we come from two very different disciplines and points of view. Ed, the lawyer, looks at things from a left brain, straightforward, legal view way. Jack the photographer has a right brain, creative point of view, and sees things from a working photographer’s viewpoint. Here’s a not so secret, secret- we don’t always agree. That doesn’t mean one of us is right and one is wrong in business terms, we just have different opinions sometimes on the same subject. For the most part, we do agree on many things and understand the other’s viewpoint when we don’t.

Ed’s View

In Sinclair v Mashable & Ziff Davis, Ed’s point of view is, as in anything you agree to by signing a contract/agreement etc., such as a Terms of Use (TOU)  or Terms of Service (TOS) it’s up to you as a business person to read and understand what you’re agreeing to. If you don’t understand or can’t understand the agreement because it is confusing, too long to read, uses legalease with which you are unfamiliar or understand the agreement and don’t like it, DON’T SIGN IT. If the agreement is of consequence bring it to a lawyer. Have the lawyer read it and advise you as to whether there are compelling reasons for you to agree to it, change some terms or throw it in the fireplace. If you don’t understand the dense, often conflicting Instagram terms don’t agree to them.

Those of you who have seen us lecture know that Ed loathes Instagram, Facebook and other “Social Media” platforms. He has never advised nor condoned the terms of use contained in Instagram’s dense “agreement”. He readily concedes that Instagram does not hide its intent to screw the contributor. Its right there in black and white. Since courts don’t save businesses from their own stupidity in entering into a bad agreement, once you sign you are stuck and you will likely get screwed.

Ed’s direct, no pussy footing response to Instagram is the opposite of Nike’s motto – “Just Don’t Do It”.  He thinks you are giving away too much in the form of uncontrollable rights. Why not just give Instagram your film card and a box of Godiva delights for Christmas and soon enough your images will get ripped off and you will be the victim of the terms you agreed to.

The most important party in this case was not a party to this case. Instagram was the gorilla in the courtroom. Ed having read the court papers agrees with Judge Woods opinion. He would have ruled the same way if the same papers were submitted to him. Ed is a passionate lunatic when it comes to classic cars. He uses car analogies all of the time when he thinks they fit. (Drives Jack crazy). In this case one analogy does fit…perfectly.  Let’s say your old Uncle Joe, a 5th generation rancher in Montana dies leaving you EVERYTHING.  You go out to the ranch and while looking around you find in an old barn a very boring looking 1966 Dodge Coronet 4 door sedan like the one pictured below:

1966 Dodge Coronet four-door Sedan

You know nothing about cars. You do zero research about the car’s value. You do get in, it starts right up and you drive it outside.  Ed sees the car and the hemi engine under the hood and offers you $500 cash money. You negotiate him up to $600 at which point Ed’s wife steps in, pushes Ed aside and buys the car for $600.

In 2007 a very similar car sold at auction for $660,000. These cars are extremely rare and very valuable. If the seller is dumb enough not to check on the car’s value nor seek the assistance of someone who is an expert in such matters, Mrs. Greenberg will promptly turn around and turn her $600 investment into almost one million dollars. And the seller? As Ron White says in his famous comedy album, “You can’t fix stupid” and the courts agree. The seller was not scammed nor forced to do anything at any time. Ed’s other phrase for Instagram and some other companies is “You sign, you die. I won’t help you commit economic suicide”. Neither will the courts.

Jack’s View

Jack on the other hand looks at it from a different point of view. With an audience of 800 million users, telling some photographers who are looking to expose their work to both a wide audience and to an expanding audience of clients such as art directors and art buyers, not to use Instagram is not a wise business strategy. A lot of ad agencies are looking at a photographer’s work on Instagram before they go to a photographer’s website.

One of the misconceptions surrounding the Sinclair case (and we see it numerous times in social media comments) is that people and companies can take your work on Instagram and just steal and use it for their own purposes cutting the creator out of the financial loop. Not really true. Judge Wood allowed the use by a third party (meaning basically anyone) as long as it was embedded and not copied. They could use the work if it was in a public account which permitted sub-licensing via embedding. You could set your account to “private” rather than “public”, which doesn’t allow embedding, but then what’s the point of having an Instagram account for professional use if only your friends see it?

If the photo is not uploaded to another site, but is just embedded, meaning it points to the original with code, then the photo is never “copied”. This brings up the issue of a photographer’s “exclusive right” of display, which is one of the specific rights in copyright law. That argument never came up because before anything else could be argued, Judge Wood ruled in a summary judgement that there was enough evidence in the legal briefs presented to dismiss the case. Jack may not like that result, but that’s the fact Jack. Gotta live with the Judge’s ruling.

So where do we stand? A question asked us by so many people on social media and with old fashion phone calls. Top level, looking down, there is another case, Goldberg v Breitbart, that is referred to in both side’s papers, which was favorable to photographers with a very somewhat similar (but not the same) type of issue, where the court ruled on a different set of facts.

Here is an over simple explanation of Goldberg v Breitbart (that Jack wrote and it makes Ed make funny noises under his breath as he sees it a bit differently), that an embedded image was still a display, to which a photographer copyright owner has what is known as exclusive rights. The Goldberg case was eventually settled, but the fact that there are two cases in two Federal Circuit courts that don’t line up together in the general idea of embedding and the right of display. When two or more Circuit Courts don’t agree on an issue, there is a chance that the Supreme Court of the United States (SCOTUS) might look and rule on the issue, if such a case that fully covers the issue can be brought forth (and paid for). On any such issue, that could be hugely very good, or it could be a huge disaster, depending on how the court would rule. No way of knowing or predicting that.

Which brings us back to what should a photographer do with a situation like this. While Ed’s advice will keep you out of trouble 100% of the time, it also keeps your images in a drawer, which he understands is not ideal. The two of us say, if you have to use Instagram, do it with your eyes open, be very careful what you post, don’t post your absolute winners, just good enough to drive people to your website, where you can control the usage completely. And (this will drive some readers bat dung crazy) watermark your images before you post them online. If you read our blog post on watermarking (linked here), you know that we recommend a small discreet watermark. If your image is ripped off (but legally used) in the same manner as in this case, at least people will know it’s your work. But much more important, if someone removes the watermark, then you have a new ball game. One, that means it’s no longer being embedded and now you can sue. To strip your watermark means someone had to physical crop and alter it. Judge Wood’s ruling only covers embedded images. Two, it’s now also a violation of the Digital Millennium Copyright Act (DMCA).

With that, hoping everyone and your loved ones are staying safe and drinking responsibly, not reactively, in these times. We welcome your comments on this issue.