Instagram lets you embed posts from any public account on the platform. This may however get difficult as you may need to get permission to embed someone’s Instagram post.
This new development was confirmed by Instagram itself following a lawsuit was filed by photographer Elliot McGucken against Newsweek for embedding his Instagram post.
Newsweek on not getting to license the photo taken by McGucken, decided to instead embed his Instagram post on their website. Newsweek cited Instagram’s terms of service which gives the company a copyright license along with a sublicense for other users.
In a statement to Ars Technica, Instagram said, “While our terms allow us to grant a sub-license, we do not grant one for our embeds API. Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law.”
Instagram told Ars Technica it was “exploring” more ways for users to control embedding. For now, photographers can only stop embeds by making photographs private, which strictly limits their reach on Instagram. Even the Mashable ruling expressed concern with Instagram’s “expansive transfer of rights” from users, so this would address a major underlying factor in both suits.
It doesn’t necessarily mean sites can’t use Instagram photos. Neither judge ruled on what’s called the “server test” an argument that embedded photos aren’t copying photos in a way that could infringe on copyright because they’re simply pointing to content posted on another site (in this case, Instagram). A tentative 2018 ruling suggested that the server test might not hold up in court, but Newsweek might bring it up as a defense, producing a clearer precedent.
Since Instagram has clearly stated that it does not sublicense rights to its embed API. It also gives photographers or just anyone more control over their third-party usage of their photos on Instagram. At present, if one’s account is public on Instagram anyone their posts are embeddable. This is restricted only to private Instagram accounts. The Facebook-owned company also told Ars Technica that it is working on giving users more control over embedding their posts.
