In times of crisis, journalists and the media have an obligation to keep the public informed of critical information, especially when human health and welfare are at stake. The COVID-19 pandemic and the George Floyd protests have further emphasized the public’s need for open, multidimensional content that not only shares facts and data, but also stories and illustrations of the human experience during these uncertain times. Photographs in particular capture the emotions and heartbeat of the global crisis in ways that are not easily conveyed with words. This desire for visual connection and communication has been further fueled by the physical constraints created by social distancing policies.

Until recently, journalists and media platforms have been able to embellish stories, tweets, and other media with embedded photos that are published on other platforms. However, two cases could halt this practice. In Goldman v. Breitbart, the Southern District of New York declined to apply the Perfect 10 Server Test, and held that embedding tweets with copyrighted photos in online news articles constituted a “display” under the Copyright Act. In June 2020, the Southern District of New York in Sinclair v. Ziff Davis, LLC reconsidered whether a sublicense to display a publicly-posted copyrighted photo existed between Instagram and Mashable, a global media platform. Previously, the court had determined that a sublicense was in effect and that Mashable was not liable for copyright infringement.

This article will begin by providing an overview of the distinctions between express and implied licenses under copyright law and the requirements for each. Arguing that the court in Sinclair v. Ziff Davis, LLC erred in finding a valid sublicense between Mashable and Instagram, this article discusses the complex interplay between sublicenses, terms of service, express consent, valid notice, and incorporation by reference that are central to the Sinclair copyright infringement claim. This article also considers whether fair use or the Digital Millennium Copyright Act would act as adequate defenses to infringement given the facts in Sinclair. Finally, this article concludes by considering the policy implications of Sinclair and Goldman and the tailwinds for photographers and artists who have experienced financial hardship due to the COVID-19 crisis.