UPDATED 7/06/22: Photographers Alexis Hunley and Matthew Scott Brauer filed papers on June 27 with the Ninth Circuit Court of Appeals, seeking to have overturned a California federal judge’s dismissal of their lawsuit (outlined below) alleging that Meta’s Instagram is liable for secondary infringement when third-party sites use IG’s embedding tool to display the infringed photos and videos. The judge in the case, Charles Breyer, based his ruling last year on a 2007 9th Circuit case establishing that web publishers don’t infringe copyright by displaying images that are stored on other companies’ servers. Hunley and Brauer have say that ruling is outdated and want it overturned.

UPDATED 2021: U.S. District Court Judge Charles Breyer in the Northern District of California dismissed Alexis Hunley and Matthew Scott Brauer’s claims, ruling that online publishers don’t infringe photographers’ copyrights by embedding Instagram images.

After Facebook admitted to a contractual loophole, photographers are pushing to force the company to change Instagram embed algorithms—and pay for copyright violations. A lawsuit filed in San Francisco last month is asking for an injunction to force Instagram to prevent copyright infringement. The lawsuit claims that “Instagram misled the public to believe that anyone was free to get on Instagram and embed copyrighted works from any Instagram account, like eating free at a buffet table of photos.” The lawsuit is just the latest in a series of legal action against Instagram’s embed tool that allows images to be shared on another webpage with just a bit of HTML code.

[Read: Instagram’s Bombshell on Copyright for Embedded Images]

Instagram has embed tools in place that make it difficult for someone to copy and paste or download and share an image that they see on the network. But, Instagram’s embed tool allows users to copy and paste a bit of code to put a slice of Instagram into any webpage. The tool works only with publicly shared images and leaves the username intact, directing traffic back to the user’s profile and, of course, Instagram itself. The feature is commonly used by news outlets from Buzzfeed to Newsweek.

Instagram’s Terms of Use include a statement that allows the platform to sublicense images to third parties. That line in the agreement got a copyright case dismissed in 2020, where photographer Stephanie Sinclair sued Mashable for sharing her photo using an Instagram embed. However, after a judge in a similar case against Newsweek said that the publication didn’t actually have a contract with Instagram, Sinclair’s case was revisited.

[Read: Do You Give Up Exclusive Licensing Rights When You Post on Instagram?]

After those cases, Facebook admitted that no publisher actually had a third-party sub-licensing agreement. While users had agreed to allow Facebook to license with third parties, no publisher had signed an agreement to become one of those third parties.

Those earlier cases has prompted the law firms Duncan Firm, Hoben Law, Cera and The Law Offices of Todd M. Frieman to file the case, which could eventually include thousands of photographers. When the case was originally filed on May 19, the lawsuit listed two photographer plaintiffs: Alexis Hunley, whose photo was embedded by Buzzfeed, and Matthew Scott Brauner, whose image was embedded by time.com. The lawsuit is asking Instagram to change the embed tool to prevent or stop copyright infringement, as well as seeking damages and disgorgement of profit.

[Read: Instagram Changes Nudity Policy After Model Points Out Bias]

The complaint calls the embed tool “Instagram’s scheme to generate substantial revenue for its parent, Facebook, Inc., by encouraging, inducing, and facilitating third parties to commit widespread copyright infringement…without appropriately compensating the copyright holder.” The complaint continues by calling the embed tool “a scheme to expand and grow Instagram’s presence on third-party websites to obtain direct financial benefit.” The complaint also mentions Facebook’s admission that no publisher had entered a license to use the embed tool on copyrighted images.

The case document further complains that Instagram users do not have any sort of tool to indicate when or how their posts are embedded, which could offer a clue as to how Instagram might revise the tool. Instagram could also institute an option in its privacy settings where users could choose whether or not to allow embeds.

Instagram notoriously lacks a share tool like Facebook and Twitter. Instead, the platform allows for embeds as well as sharing to direct messages, Facebook, Twitter, email or via a link. Unlike clicking to share a photo to Facebook, the embed tool allows a photo to leave the platform.