Newsweek settles copyright fight over Instagram embedding

The parties told the court Wednesday that they had resolved the case. A lawyer for Newsweek said Thursday that the settlement’s details were confidential.

The copyright lawsuit is one of several to hit U.S. courts in recent years over third-party websites’ embedding of posts with copyrighted material from Instagram and other social media sites, including a case that other photographers brought against Instagram in California.

McGucken sued Newsweek in 2019 after it included an Instagram post of his photograph of an ephemeral lake in Death Valley National Park in an article without his permission.

U.S. District Judge Katherine Polk Failla rejected Newsweek’s bid to end the case last month, and she also denied McGucken’s request for a pre-trial finding that the magazine violated his rights.

Failla said Newsweek had not proven it made fair use of the photo. And while Instagram’s terms of use give it the right to license content posted publicly on the site, it was not clear that Instagram had granted Newsweek a license, Failla said.

Failla also shut down Newsweek’s argument that she should apply the 9th Circuit’s controversial “server test” to end the case. The test allowed Instagram last year to defeat a lawsuit in California that claimed the embedding feature enables copyright infringement.

Under the test, a website can only violate an artist’s exclusive right to display their copyrighted work if it also stores a copy of the work on its own server. The California court said Instagram did not enable infringement because websites do not store their own copies of the embedded images.

McGucken’s attorney Laura Zaharia of Doniger/Burroughs said Thursday that Failla had issued a “well-reasoned rejection of the so-called ‘server test.'”