Copyrighted Images on Social Media

Perfect 10 established that copyright infringement occurs when content is stored on an entity’s server, thus establishing the server test. However, if the purpose, character, nature, portion, and effect of the work on the market substantially differ, then infringement is not present. Hunley implemented the Perfect 10 decision in social media,  determining that while a social media platform hosts the photograph on its server, the platform’s terms of use likely grant the social media platform a license.

The landmark case Perfect 10, Inc., v. Amazon established the initial precedent for applying the  fair use Doctrine as an exception to the server test for online copyrighted images. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th Cir. 2007). Under the server test, copyright infringement on online platforms occurs when the digital media is stored on the entity’s server. Id. Nearly twenty years later, Hunley v. Instagram applied the Perfect 10 decision to social media posts. Hunley v. Instagram, 73 F.4th 1060, 1077 (9th Cir. 2023). Both cases were decided in the United States Court of Appeals for the Ninth Circuit, which remains at the forefront of copyright infringement litigation. Hunley, 73 F.4th at 1077; Perfect 10, 508 F.3d at 1159. However, other federal circuits maintain autonomy over interpreting and applying the server test. Hunley, 73 F.4th at 1077; Perfect 10, 508 F.3d at 1159.

The family of apps that Meta Platforms owns, including Instagram, collectively hosted an average of 3.48 billion daily active users in June 2025. Meta Reports Second Quarter 2025 Results, Meta Investor Relations (July 30, 2025), https://investor.atmeta.com/investor-news/press-release-details/2025/Meta-Reports-Second-Quarter-2025-Results/default.aspx. This shocking statistic demonstrates the scale at which copyrighted material can be shared throughout the world. See Id. Given the speed and ease with which users can post to social media today, social media users should remain vigilant for potential copyright infringement claims arising from posting, reposting, or screenshotting copyrighted photographs. Kaitlyn Garvin, Serving Up Confusion: Embedding Copyrighted Content and the Server Test, Custom Built Intellectual Property Solutions (Apr. 9, 2025), https://www.sandsip.com/en/2025/04/09/serving-up-confusion-embedding-copyrighted-content-and-the-server-test/. As social media blurs the boundaries of what is categorized as intellectual property, any person considering posting on social media should understand the legal implications relative to copyright infringement. See Garvin, supra.

In Perfect 10, Amazon partnered with Google to generate and display thumbnail images stored on Google’s servers. Perfect 10, 508 F.3d at 1155. These thumbnails hyperlinked to full-size images that were not stored on Google’s servers. Id. The Ninth Circuit explained that posting a copyrighted photograph on Google fails the server test if the photograph is “embodied (i.e., stored) in a computer’s server (or hard disk, or other storage device).” Id. at 1160. The thumbnail version of the photographs satisfied the server test because the thumbnail images were stored on Google’s server and, therefore, subject to infringement analysis. Id. In contrast, the full-size images did not infringe on the copyright owner’s right because they were not stored on Google’s servers, but merely linked to the external sources of the photographs. Id.

The court in Perfect 10 further explained that because Google's thumbnail images satisfied the server test, Google and Amazon were required to establish a valid fair use defense to avoid liability for copyright infringement. Id. at 1163. According to Congress, a fair use analysis considers four factors when evaluating whether a particular use qualifies as fair use: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the portion of the work used, and (4) the effect on the market of the copyrighted work. 17 U.S.C. § 107. Weighing these factors, the court in Perfect 10 determined that Google's use of the thumbnail images was sufficiently transformative to constitute a fair use. Perfect 10, 508 F.3d at 1166.

The first factor of a fair use analysis, the purpose and character of the use, examines the degree to which the work is “transformative.” Id. at 1164. A work is considered transformative when it "is one that alters the original work ‘with new expression, meaning, or message.’” Id. at 1164–1165 (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 500 (1994)). In Perfect 10, the court found that “[a]lthough an image may have been created originally to serve an entertainment, aesthetic, or informative function, a search engine transforms the image into a pointer directing a user to a source of information.” Perfect 10, 508 F.3d at 1165. The second factor, the nature of the work, was satisfied under the “right of first publication.” Id. at 1167. “The right of first publication” gives a creator the right to control the first public appearance of the work. Id. Once the “right of first publication” is used, there is less protection for the work than for an unpublished work. Id. The Ninth Circuit determined that Perfect 10 used the “right of first publication” to post the images in the preferred form, and Google was allowed to use the images in their own form as thumbnail images. Id. at 1167. Regarding the third factor, the portion of work used, Google had to use the entire image in the thumbnail; otherwise, the search engine would be rendered useless. See Id. Therefore, even though Google used the entire portion of the work, the use was reasonable because the search engine could not be used without displaying the entire photograph. Id. Regarding the fourth factor, the effect on the market of the copyrighted work, the Ninth Circuit relied on the transformative nature of turning the photographs into a search engine tool to conclude that Google’s use did not affect Perfect 10’s market for the copyrighted images. Id. at 1168.

Nearly twenty years after Perfect 10, Alexis Hunley brought a similar claim. Hunley, 73 F.4th at 1060. Hunley, a professional photographer, posted several of her own copyrighted photographs to her personal Instagram account. Hunley, 73 F.4th at 1065. Subsequently, two online media outlets, Buzzfeed and Time, embedded both Hunley’s Instagram handle and one of her Instagram posts alongside their online publications. Id. Embedding a photograph allows a third party to display content from Instagram without needing to store it on the third party’s server, thus circumventing the server test. Id. at 1064 – 1065. Hunley then sued Instagram, alleging the embedding tool violates the Copyright Act. Id. at 1067. See generally 17 U.S.C. § 106.

The Ninth Circuit explained that when Hunley posted her photographs to Instagram, she effectively stored a copy on Instagram’s server. Id. at 1077. In doing so, Hunley gave Instagram the right to display the photographs. Id. Crucially, Instagram’s terms of use grant Instagram a license to “use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works,” while not retaining ownership. Terms of Use, Instagram: Help Center,  https://help.instagram.com/581066165581870/?helpref=uf_share (last visited Oct. 26, 2025). Therefore, posting a photograph to Instagram granted the platform the ability to host and display any content posted on Instagram. Id.

The next issue in Hunley was whether Instagram can authorize third parties, such as Buzzfeed and Time, to display the photographs via Instagram’s embedding tool. Hunley, 73 F.4th at 1065. Relying on the server test from Perfect 10, the Hunley court concluded that Buzzfeed and Times did not store the photographs on their servers and therefore did not infringe  Hunley’s copyright. Id. Furthermore, the process of embedding a photograph online does not involve a “copy” as per the Copyright Act. Id. At 1069. The Copyright Act defines a copy as “either an original or duplicate that is fixed, and fixation requires embodiment in a perceivable format.” Id. See generally 17 U.S.C. § 101. While Instagram did store a copy of Hunley’s photograph, Buzzfeed and Times’ process of embedding the photograph alongside their own content meant they did not store the photograph on their servers, and there was no direct infringement. Hunley, 73 F.4th at 1077. The implications of the Hunley case translate to courts generally not holding social media platforms liable for embedding photographs without direct infringement from a third party. See Id.

The combined precedent of Perfect 10 and Hunley demonstrates how courts have applied copyright principles to social media platforms. Hunley, 73 F.4th at 1065; Perfect 10, 508 F.3d at 1168. Additionally, both cases establish instances where social media platforms can circumvent the server test. Hunley, 73 F.4th at 1065; Perfect 10, 508 F.3d at 1168.  Furthermore, Perfect 10 and Hunley demonstrate the balancing act between the rights of creators and a social media platform’s right to use creators’ work. Hunley, 73 F.4th at 1065; Perfect 10, 508 F.3d at 1168. For individual users in today’s world, anyone posting photographs on social media platforms should proceed with caution. Garvin, supra.

Beginning in the twentieth century, technological advancements posed substantial challenges for lawmakers to balance content creators’ rights and public use. Richard Gearhart, Modernizing Copyright: How Lawmakers Are Updating Old Laws for New Tech, Gearhart Law, LLC (Jan. 23, 2024), https://gearhartlaw.com/modernizing-copyright-how-lawmakers-are-updating-old-laws-for-new-tech/. Specifically, social media allows for instantaneous content sharing, which greatly highlights the need for a balance between creators and subsequent users of the posts. Id. One such balancing method is the server test created in Perfect 10. Perfect 10, 508 F.3d at 1146.

Uploading content to a social media platform typically involves storing a copy of a creator’s work on the platform’s server, which might grant the social media platform a license to use the work according to its terms of use. Terms of Use, supra. Therefore, when a user posts a copyrighted photograph to social media, the copyrighted photograph is stored on the social media platform, not the user’s server. Garvin, supra. Since the photograph is not hosted on the user’s server, a user posting the copyrighted photograph cannot be sued for copyright infringement. See Perfect 10, 508 F.3d at 1146. Regarding the social media platform hosting the copyrighted photograph, the photograph is now hosted on the platform’s server, and they are liable for copyright infringement. See Id. However, the process of embedding offers a remedy to hosting the photograph on the social media platform’s server because embedding directly links a photograph without hosting it on a server. See Id. Furthermore, the terms of use of most social media platforms likely transfer liability of any damages for copyright infringement back to the user who posted the content. Terms of Use, supra. Therefore, while a user posting a copyrighted photograph is not initially liable for copyright infringement because the photograph is not hosted on the user’s server, the process of posting the photograph transfers the social media platform’s liability for copyright infringement back onto the user. See Id.

Regarding content creators posting their own copyrighted photographs, the content creators must pay close attention to the platform’s terms of use. Garvin, supra. Most social media platforms’ terms of use grant a license to the social media platform to use or host the photograph once it is posted on their platform. Id. This license means the content creator gives up their right to sue for copyright infringement once they post the copyrighted photograph to social media. Id. Overall, if you wish to post another person’s copyrighted work to social media, the best practice is to ensure the work is transformed according to the  fair use defense to avoid liability for copyright infringement. Id. See generally 17 U.S.C. § 107.