Villain or Victim? Public Mockery Follows Photographer Suing Instagram

By Talia Kosh, Esq.

According to an article on Torrent Freak, Jennifer Rondinelli Reilly sued Instagram last March for failing to remove unauthorized uses of her image-one in particular-featuring red lips and a microphone. [1]

Photographer Reilly sent three takedown notices to Instagram over three consecutive days, but Instagram never responded to her and had still not disabled access or removed the infringements time the lawsuit was filed.

Another article written on Reilly’s lawsuit asks, “when does protecting your personal copyright turn into trolling?”[2]  The reader comment section following Torrent Freak’s article on Reilly and Instagram contained 60+ comments, many of which complain that Reilly is making a big fuss over nothing, and wondering why would Reilly go to so much trouble over non-commercial uses, believing she gave Instagram little time to respond.  A few others also though her trolling for money through litigation.

One reader, in particular, created a new noun in her honor:



1.) Original content created with the intent to entice its unlicensed use in order to manufacture the circumstances to bring legal action for monetary gain.”

Such comments are seemingly bolstered by the fact that Reilly recently sued several other OSPs, including Twitter, for the same failure to takedown the same image. In the case of the infringements of her image on Twitter, some of these alleged infringements seemed valid, while others were takedown notices regarding tweeted links to Reilly’s image from her own website.

This is where some of her motives become questionable, as generally, courts agree that linking to another’s website does not constitute copyright infringement.  And why, as an artist, would you object to someone on social media giving you free advertising, tweeting about your image and linking to your website?

However, even if Reilly’s attitude toward ownership might be extremely irritating, it’s actually a necessary evil. And here’s why:

To recap, under the Digital Millennium Copyright Act (DMCA), web hosts and online service providers (“OSPs”), such as Instagram, are protected from liability for copyright infringement by users, so long as they meet the requirements of the law and remove infringements after notification within a reasonable amount of time.[3]

In Instagram’s FAQs section on Copyright, it states that Instagram does comply with the DMCA and provides their own takedown notice form where takedown requests must provide links to the infringing work. After receiving in this form all the information it needs to respond, Instagram should be able to follow through in 7-10 days. It seems that the generally acceptable response time to takedown notices by OSPs is anywhere from 48 hours to a week.[4] Yes, there remains a question of what is an “expeditious” amount of time to respond, as required by law:  Reilly sent 3 takedowns in three days, but she waited almost two months to file suit against Instagram, and Instagram had not yet removed all of the infringing content at the time of the suit. [5]

Reilly alleges to have sent “dozens of takedown notices” before filing suit. All that Instagram had to do in order to avoid suit was to remove the allegedly infringing content and give the infringer a right to respond with a counter-notice.[6] They are then absolved of any wrongdoing. But they didn’t do this simple thing they are required by law to do.

And this is the trouble with OSPs, at large. Many folks filing DMCA takedown notices sometimes get no response at all, but the DMCA is the only route that a creative has to demand that service providers takedown their images outside of litigation.

While the process of sending a DMCA notice is clear, how it is dealt with by service providers varies greatly. Ultimately, if you don’t receive a response to your takedown notice from these large online service providers like Facebook, Instagram, Twitter, YouTube-there’s no phone number, often no email, no human you can actually call and talk to.

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