Sinclair v. Ziff Davis, LLC

Background

Stephanie Sinclair, a professional photographer, sued Mashable, Inc. and its parent company, Ziff Davis, LLC, for copyright infringement. Sinclair alleged that Mashable posted her copyrighted photograph, “Child, Bride, Mother/Child Marriage in Guatemala,” on Mashable’s website. She had posted the photograph to a publicly viewable Instagram account.

A Mashable employee had offered Sinclair $50 to license the photograph for an article about female photographers. Sinclair did not accept the offer. Mashable later included the photograph in the article using an embedding process that caused a visitor’s browser to retrieve the image from Instagram’s server and display it on Mashable’s website.

The defendants moved to dismiss the Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not allege enough facts to state a legally valid claim.

Mashable’s Sublicense

The court ruled that Mashable used the photograph under a valid sublicense from Instagram. By creating an Instagram account and posting the photograph, Sinclair agreed to Instagram’s Terms of Use. Those terms gave Instagram a transferable and sublicensable license to content posted through Instagram. Instagram’s policies stated that public content could be accessed and shared through Instagram’s application programming interface, or API, which allows users to embed public Instagram posts on websites.

Because Sinclair had made the photograph public on Instagram, the court concluded that she had authorized Instagram to sublicense its use to users of the API, including Mashable. The court rejected Sinclair’s arguments that Mashable needed a license directly from her, that Mashable had to be an intended beneficiary of the agreements, and that the agreements were invalid because their terms appeared in several related documents. The court also rejected the argument that Instagram had sold the photograph; it had instead granted Mashable a sublicense to embed and display it.

The court noted that, because it found a valid license, it did not need to decide whether embedding an image itself constitutes a copyright display capable of infringement.

Ziff Davis

The court separately ruled that Sinclair failed to state a copyright claim against Ziff Davis. A parent corporation and its subsidiary are legally distinct, and ownership alone is not enough to impose liability on the parent for the subsidiary’s alleged copyright infringement. The complaint did not allege that Ziff Davis had a role in contacting Sinclair, posting the article, or embedding the photograph. References to Ziff Davis in Mashable’s website policies and copyright-agent information also did not establish the required involvement.

The opinion states that Sinclair conceded she had not stated claims against Ziff Davis for contributory or vicarious copyright infringement and had not alleged facts supporting disregard of Ziff Davis’s separate corporate status.

Disposition

The court dismissed the Second Amended Complaint with prejudice. It directed the Clerk of Court to close the case and ruled that all pending motions were moot. Judge Kimba M. Wood entered the order.