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“Access” in the internet age - Social media sharing complicates copyright infringement analysis

One element of a successful copyright infringement claim is showing that the defendant had access to the plaintiff’s copyrighted work. But how can a court assess the concept of access in a digitally interconnected world where social media can make a post available to millions of people around the globe?

The U.S. Court of Appeals for the Ninth Circuit recently considered this question. One of its conclusions? That availability shouldn’t be confused with access.

Instagram instigates infringement claim

Rodney Woodland is a freelance artist and model who posts photographs of himself in different poses on Instagram. Montero Lamar Hill (also known as the recording artist Lil Nas X) also shares photos of himself in varying poses on Instagram.

Woodland sued Hill for copyright infringement. He alleged that eight of the photos on Hill’s Instagram account infringed 12 of his own. His photo posts garnered between eight and 75 “likes” each. Hill’s posts on Instagram receive hundreds of thousands, sometimes millions, of “likes.”

The trial court dismissed the claim before trial. It found that, among other things, Woodland didn’t allege any factors that would show a reasonable possibility that Hill viewed Woodland’s photos on Instagram. Woodland appealed.

Court shares its analysis

To get to trial on a copyright infringement claim, a plaintiff must show 1) ownership of a valid copyright, and 2) copying of the original elements of the copyrighted work. The first prong wasn’t in question here, so the appellate court focused on the second. Under that prong, the plaintiff must show that the defendant copied the protected work.

Direct evidence of copying is, the court noted, rarely available. To prove copying circumstantially, plaintiffs often show that the defendant had access to their work and that the two works are “substantially similar.”

To show circumstantial evidence of access, the plaintiff generally can provide evidence of a “chain of events” between the work and the defendant’s access to it, or that the work was widely disseminated. The latter wasn’t the case for Woodland, meaning he needed to show a chain of events that raised a reasonable possibility that Hill viewed his work; a “bare possibility” wouldn’t suffice.

Woodland attempted to do so by contending that Hill, as an Instagram user, had a reasonable possibility of seeing his photos there. The court noted that this argument highlights how platforms like Instagram can theoretically make it easier to show access for a copyright claim. After all, a work posted online is available to millions or billions of individuals worldwide.

Moreover, platforms such as Instagram, Spotify and YouTube actively connect content creators with content consumers. They use algorithms to recommend tailored content, thereby facilitating the discovery of content without consumers needing to search for it. The platforms continually push individualized content to users based on their preferences, usage and habits.

Woodland asserted that Instagram’s recommendation algorithm increased the odds that Hill saw his works because the content they both post is similar. He provided no evidence, though, that similar profile content alone would prompt Instagram to promote a profile’s posts to certain users. Rather, his evidence indicated that posts are recommended based on:

Accounts users follow,
Posts users like, share and comment on,
Users’ history of connecting with accounts, and
How popular a particular post is and how others have interacted with it.

The court determined that Woodland therefore fell short of showing Hill had the requisite reasonable chance of seeing Woodland’s works on Instagram.

Stay tuned

The Ninth Circuit declined to delineate the precise facts a plaintiff must allege about a digital platform’s algorithm or content-sharing policy to establish access. The court suggested, though, that it might be sufficient to allege that a defendant followed, liked or otherwise interacted with posts or accounts connected to or similar to the plaintiff’s. Further clarification from the courts is likely in the future.

Sidebar: Photo analysis shows lack of substantial similarity

Even if the plaintiff in Woodland had established access (see main article), the copyright infringement claim would have failed because the U.S. Court of Appeals for the Ninth Circuit found none of the defendant’s photos were “substantially similar.” The court emphasized that the individual elements in photos (for example, subject, poses, lighting, costumes and makeup) aren’t themselves protected by copyright. What’s protected is the selection and arrangement of such elements.

After evaluating the individual photos at issue, the appellate court concluded that the plaintiff’s photos bore few similarities to the defendant’s. For example, it found that photos of a man reclining with certain body parts “strategically covered” presented a common pose for male models and actors. Moreover, the backgrounds, colors, lighting, perspectives and accessories on the respective men varied widely. Another set of photos shared nothing other than the depiction of a man with outstretched arms, an unprotectable idea. The differences between the plaintiff’s and defendant’s photos meant the plaintiff didn’t establish unlawful appropriation of his photos.