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instagram top nine most liked[Photo via Unsplash/Prateek Katyal]

Photographers have long been battling with the rights to their photos after posting to Instagram and a new court order is providing some bad news as a New York judge is saying they’re giving up exclusive licencing by posting on the platform.

According to The Hollywood Reporter, a New York federal court is denying a photographer’s copyright claim over Mashable embedding her Instagram post in a story of theirs.

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Photojournalist Stephanie Sinclair was the plaintiff in the case.  Her work has been featured in National Geographic, Time, New York Times and other notable publications,

She posted a photo of a mother and child in Guatemala on Instagram which Mashable later wanted to use in an article they were writing about female photographers. They offered her $50 to use the photo which she denied. In turn, they used her Instagram post in their story by embedding it.

This sparked the court to use the “server test.”

This is outlining the liability of infringement based on where images are being stored.

As THR points out, this was used two years ago with NFL player Tom Brady resulting in a different New York judge ruling the use of embedded images by news sites left them liable to copyright laws. The ruling in Goldman v. Breitbart had lawyers concerned over websites would face disruptions in providing information.

Now, U.S. District Court Judge Kimba Wood is saying the complete opposite in the official ruling. At the end of the file, they’re mentioning the past ruling but only briefly.

“Here, [Sinclair] granted Instagram the right to sublicense the Photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph,” rules Wood.

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Essentially, the judge is arguing that by posting on Instagram, Sinclair agrees to the site’s Terms Of Use. That includes “a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content.”

Further, Wood says the photographer “uploaded the Photograph to Instagram and designated it as ‘public,’ she agreed to allow Mashable, as Instagram’s sublicensee, to embed the Photograph in its website.”

Notably, Sinclair’s Instagram is now private. This seems like a direct cause of the court case.

“[Sinclair] argues that it is unfair for Instagram to force a professional photographer like [her] to choose between ‘remain[ing] in “private mode” on one of the most popular public photo sharing platforms in the world,’ and granting Instagram a right to sub-license her photographs to users like Mashable,” writes the judge.

“Unquestionably, Instagram’s dominance of photograph- and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that Plaintiff’s dilemma is a real one. But by posting the Photograph to her public Instagram account, Plaintiff made her choice. This Court cannot release her from the agreement she made.”

You can see the full case file below.

What do you think of the ruling over copyright for photographers posting photos to social media sites like Instagram? Let us know your thoughts in the comments below.

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