By: Andrew Winegar
This app allows users to share photos and videos with all of their followers instantly, while the photos and videos themselves disappear after 24 hours, but not before users can see who has viewed their content. In addition, users can add text, emojis, filters, and locations to these posts, as well as use a drawing tool to edit content with the touch of a finger. Four years ago in October 2013, this description would apply to only a single app: Snapchat. However, four years later, this description fits a number of apps, including Instagram and Facebook, leaving Snapchat feeling the effects.
The creative studio and video analytics company, Delmondo, claims average unique viewers for Snapchat Stories were down 40% in November 2016 from July of the same year. Contributing to this decline is likely the success of Instagram’s nearly identical Story feature, which marketing platform TheAmplify claims sees 28% higher view counts than Snapchat Stories, despite not entering the market until August of 2016. Additionally, as of June 2017, Instagram Stories now has over 50% more daily active users (users that interact with the app’s content on a daily basis) than Snapchat. This takeover by Instagram only seems to be getting stronger, with Instagram’s Stories’ daily active user growth accelerating while Snapchat’s daily active user growth “rapidly decelerates”. Now, over a year later, the two apps continue to exist side by side, with no legal action taken by Snapchat to slow the rise of Instagram’s Stories. At first glance, the entire concept of a vanishing album of vanishing photos that Instagram has recently had such success with seems to be a direct rip-off of Snapchat’s formula, but several issues may be keeping Snapchat from having an infringement claim despite clearly being harmed by the advent of a nearly identical platform.
In the United States, copyright protection exists to protect “original works of authorship, including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.” However, copyright does not protect “facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.” In Snapchat’s case, it could easily be argued that the Story feature introduced in 2013 is an original work of computer software authorship; however, what Snapchat really did was popularize an idea: ephemeral content broadcast to an entire audience at once.
The idea of “ephemeral” content is relatively new in the social media world. The idea of content being “ephemeral” is the idea that something shared between two people on social media does not have to exist in perpetuity in the way a Facebook or Instagram photo would. While posts shared on Facebook remain until a user manually deletes them, ephemeral photos “self-destruct” after a certain period of time, and cannot be searched for on a static platform like how a photo could be searched for on Facebook. Snapchat opened the door for many other apps that based their appeal on ephemeral content; apps like Frankly, Blink, Wickr, and Confide capitalized on the appeal of ephemeral messaging after witnessing the success of Snapchat. However, none of these apps really affected the rise of Snapchat, they were not nearly as similar and instead focused primarily on one aspect of Snapchat’s service: messaging.
In contrast, Instagram’s Story functionality copies the entire idea of Snapchat: ephemeral messaging, photo and video broadcasting, the ability to send individual ephemeral photos and videos to users, photo editing by use of premade filters, and a drawing tool. It would seem that this level of similarity would surpass the simple “idea” of ephemeral messaging and fall into “expression” territory; however, the issues between idea and expression are controversial in copyright law—especially when it comes to computer software. Specifically, the idea vs. expression distinction runs into issues when applying to computer software programs because these programs are considered “utilitarian articles.” Essentially, unlike traditional copyright mediums (such as paintings or musical selections), computer programs are used to accomplish tasks and therefore are constrained by factors such as efficiency, compatibility requirements, and industry demands. The result of this difference is that courts have determined some types of computer software programs merely “express” ideas; that is, if two different programs come out to the same result, only the specific underlying programs are copyrightable individual expressions of a non-copyrightable idea. Similarly, the specific programs that run behind Snapchat and Instagram stories are individually copyrightable but the overall idea of ephemeral broadcasting is not, no matter how similar the two end products end up.
Snapchat’s remaining avenue to protect its intellectual property from being copied by Instagram would seem to be a patent infringement claim. A patent is “an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem.” At a surface level, the Snapchat “Story” function that Instagram has adopted certainly seems to be a process that offers a new way of sharing ephemeral content with a broad range of followers all at once, yet Snapchat has yet to file any sort of infringement claims.
Snapchat holds USPTO Application #20160099901, a patent for an “ephemeral gallery of ephemeral messages.” This application was filed in October of 2014, over a year after the Snapchat Story function went live, and was not published until April of 2016. The language of the patent application attempts to protect this specific action: a gallery of disappearing photos that itself disappears from view when all photos within the gallery have disappeared.
It is important to note that this is merely a patent application as of this writing, not an issued patent, but the silence from Snapchat well after the advent of the Instagram Story feature is telling. If Snapchat holds the patent for ephemeral galleries of ephemeral photos, why allow the popularity of Instagram’s functionally identical ephemeral gallery of ephemeral photos to grow unchecked? The answer may lie in how patents are granted: a patent must be non-obvious, be novel, have utility, and be enabled (adequately described in the patent application). Snapchat’s Story function has utility as an alternative to traditional forms of social media by allowing users to post content that they otherwise would not post due to its disappearing nature, and the patent application does adequately describe the process; however, the argument is whether this collection of content is non-obvious and novel.
In determining whether a patent is “non-obvious”, the Manual of Patent Examining Procedure (MPEP) offers some examples of “obviousness” including (but not limited to): “combining prior art elements according to known methods to yield predictable results” or “simple substitution of one known element for another to obtain predictable results.” It could be argued that taking the known method of online photo sharing and adding a disappearing element would yield a predictable result; yet, it could just as easily be argued that the two combining is a non-obvious design. Similarly, an ephemeral album is a novel idea if the key component is its disappearing nature; however, it could just as easily be determined that the key component is its designation as an album—and photo albums have existed for decades. Ultimately, “no patentability requirement is both as critical and as subjective as non-obviousness.”
What is clear is that Snapchat’s time in the spotlight may be fading with the advent of similar products offered on long-standing social networks that predate it such as Instagram and Facebook. These social media behemoths with previously established networking advantages may limit the continued growth of Snapchat, unless Snapchat is able to assert that it owns intellectual property in regards to the “Story” feature. Whether or not the patent office views Snapchat’s use of ephemeral content as non-obvious and novel remains to be seen; however, at the current rate Snapchat’s popularity may ultimately be just as ephemeral as the content that it supports.
 Snapchat Gets its Own Timeline With Snapchat Stories, 24-Hour Photo & Video Tales, TechCrunch (Oct. 3, 2013), https://techcrunch.com/2013/10/03/snapchat-gets-its-own-timeline-with-snapchat-stories-24-hour-photo-video-tales.
 Instagram is Ruining Snapchat’s Story, Business Insider (Feb. 1, 2017), http://www.businessinsider.com/instagram-is-ruining-snapchats-story-2017-2.
 Instagram Stories are Crushing Snap, Business Insider (Jun. 22, 2017), http://www.businessinsider.com/snap-stock-price-impact-instagram-stories-2017-6.
 Copyright in General, Copyright, https://www.copyright.gov/help/faq/faq-general.html (last visited Oct. 15, 2017).
 Snapchat’s $10B Value Proves Ephemeral Messaging is Here to Stay, GIGAOM (Jan. 2, 2015), https://gigaom.com/2015/01/02/snapchats-10b-value-proves-ephemeral-messaging-is-here-to-stay.
 ‘Ephemeral Messaging’ and the Need for Self-Destruct Apps, LinkedIn (Apr. 3, 2016), https://www.linkedin.com/pulse/ephemeral-messaging-need-self-destruct-apps-radhika-ramachandran.
 3 Eckstrom’s Licensing in Foreign and Domestic Operations § 12:23 (2017).
 See generally Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983).
 Patents, WIPO, http://www.wipo.int/patents/en (last visited Oct. 15, 2017).
 Ephemeral Gallery of Ephemeral Messages, U.S. Patent No. 20160099901 (filed Oct. 2, 2014), https://portal.uspto.gov/pair/PublicPair.
 Ephemeral Gallery of Ephemeral Messages, Fresh Patents (Apr. 7, 2016), http://www.freshpatents.com/-dt20160407ptan20160099901.php.
 John H. Barton, Non-Obviousness, 43 Idea 475 (2003).
 Benjamin H. Graf, Prognosis Indeterminable: How Patent Non-Obviousness Outcomes Depend too Much on Decision-Makers, 9 Cordozo Public Law Policy & Ethics Journal 567, 574 (Summer 2011).
 Id. at 605.