After a recent court case involving a photographer and a large media publication, the debate on licensing rights has reopened.
Photojournalist Stephanie Sinclair has lost her court case against popular news publication, Mashable. Sinclair took the online-magazine to court after accusing it of infringing copyright law. In an article published back in 2016, Mashable used one of Sinclair’s images. The company is said to have initially offered Sinclair $50 to use one of her photographs, but after she declined, the company turned to Instagram to find a work-around to using her image. With everyone pointing the finger at each other, let’s break down the situation and explore possible solutions going forward.
The Role of Mashable
So what did Mashable do? When Sinclair told the publication she did not want it to use her picture, it took to her Instagram feed to find the photo so it could use the embedding code. By embedding the photo from Instagram, Mashable wasn’t in any breach of copyright law. That’s because when a photographer signs up to Instagram, they agree to allow third parties to embed their photographs into articles online.
I have mixed feelings about this. First off, I believe Mashable is least to blame when it comes to taking responsibility for the situation. It reached out to Sinclair to offer compensation, and when that offer was declined it looked for alternative ways within the law to use Sinclair’s work. Ethically, there’s an argument to say that Mashable should have respected the wishes of Sinclair not to be included in the article. There are far more than 10 female photojournalists doing great work: Mashable could have easily moved on and not used Sinclair’s image.
“It only highlights that photographers are willing to commit to things they either know nothing about or don’t see as a big deal until it impacts them directly.”
But, seeing as how the publication felt it was imperative to include her, it did so in-line with the law, and there’s nothing anyone can say or do other than accept that. As someone who works full-time in digital media, I understand the pressure on publications to do the right thing. Balancing good content and keeping everyone happy isn’t easy. Sometimes we have to take advantage of what’s available to us: that’s exactly what Mashable did.
The Role of the Photographer
I empathize with Sinclair, but only to a certain point. Before writing, photography was all I did. I’ll always be on the side of the photographer getting paid, but photographers can’t have it all right now. If someone opts into terms and conditions of an app – in this case, Instagram’s – they are committing to them and stating they are happy to accept them. One then can’t turn around and take action against something they previously agreed to.
Maybe Sinclair didn’t know or didn’t care at the time. Either way, she can’t have it both ways. If she isn’t happy with Instagram’s terms and conditions – and I could understand why she wouldn’t be – then she should delete her account and leave the app.
“…Instagram can dictate the way the game is played and has little or no interest in how it affects the players.”
To take Mashable to court makes no sense to me. It only highlights that photographers are willing to commit to things they either know nothing about or don’t see as a big deal until it impacts them directly.
The Role of Instagram
I’ve long said that Instagram doesn’t care about photographers. It doesn’t: it only cares about Instagram. These terms and conditions do not surprise me. Instagram knows how desperate photographers are to become successful. It knows that it’s an integral part of a photographer’s marketing strategy. Instagram also knows that for every Sinclair, there are far more photographers who do not care about losing control over their liscensing.
Because of all of this, Instagram can dictate the way the game is played and has little or no interest in how it affects the players.
In conclusion, I think the case was an utter waste of time. It was the wrong way to go about the situation, and also attacked the wrong party. As photographers, our issue should be with Instagram, not the publications. That issue should also extend to ourselves as we continue to enable this systematic attack on the right for photographers to earn money from what they do.
It’s a vicious cycle, and it’s not one Instagram will ever stop. It’s up to us to either walk away or accept anything we post on Instagram isn’t likely to add to our income stream.