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Tweeted Photograph Can Still Lead to Copyright Infringement Action — Chicago Copyright Lawyers

A recent copyright ruling involving embedded Tweets of quarterback Tom Brady has created alarm among the digital media, where photos are embedded and linked to on a routine basis. In a copyright infringement case that could have a far-reaching impact on anyone who uses images on a blog or website, the Southern District of New York considered how photos are shown on one site but stored on another site’s server implicate the image owner’s exclusive display right under the federal Copyright Act.

District Court Judge Katherine Forrest held that when news organization defendants embedded Tweets on their web pages, they violated the plaintiff’s display right, and “the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result.”

Plaintiff Justin G. took a photo of New England Patriots quarterback Brady with the Boston Celtics manager in East Hampton, N.Y., in 2016. He uploaded it to his Snapchat page, where it went viral with the help of Twitter. Several news outlets including defendants Breitbart, Time Inc., and the Boston Globe then embedded the Tweeted image in their articles. Justin sued under the Copyright Act, claiming he never licensed the rights to display his photo. The other named defendants include Yahoo!, Vox Media and Gannett.

“A review of the legislative history reveals that the drafters of the 1976 Amendments [to the Act] intended copyright protection to broadly encompass new, and not yet understood, technologies,” Judge Forrest wrote, addressing the law’s application to the new frontier of social media.

Few federal courts have confronted the issue. In Perfect 10, Inc. v. Amazon.com, Inc. (508 F.3d 1146), a 2007 case involving Google image searches, the Ninth Circuit Court of Appeals adopted the “server test,” which holds that whether a website publisher is directly liable for infringement turns on whether the image is hosted on the publisher’s own server or is embedded or linked from a third-party server. The defendants urged Forrest to apply this test.

Forrest noted that the server test has not been widely adopted outside the Ninth Circuit.

The Seventh Circuit, in Flava Works, Inc. v. Gunter, 689 F.3d 754 (2012), rejected Perfect 10’s holding that inline linking of content can never give rise to a claim of direct copyright infringement: “In our view, a website’s servers need not actually store a copy of the work in order to ‘display’ it.”

The Northern District of Texas rejected the server test outright.

Defendants argued that by embedding the Brady photo, they simply provided “instructions” for viewers to navigate to a third-party server (Twitter) on which the photo resided, which does not constitute a “display” as a matter of law.

Justin argued that broad adoption of the server test would have a “devastating” economic impact on photographic and visual artwork licensing and deprive content creators of the resources to invest in further creation.

In siding with the plaintiff, Forrest wrote that the plain language and legislative history of the Copyright Act and Supreme Court interpretation “provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have ‘displayed’ a work within the meaning of the Act,” adding that there were “critical factual distinctions” from the Perfect 10 case. Using Google’s search engine to navigate to various web pages is not the same as “opening up a favorite blog or website to find a full-color image awaiting the user.”

Defendants could not rely on the server test when they actively took steps to display the image by copying a Tweet’s URL and using coding within their own content management systems or embedding.

Forrest dismissed the idea of creating a “chilling effect” on Internet functionality by finding for the plaintiff, noting the defense still possesses separate, strong defenses to liability including fair use, and genuine questions as to whether Justin effectively released his image into the public domain when he posted it to his Snapchat account.

The case is Justin Goldman v. Breitbart News Network LLC, et al., Case 1:17-cv-03144-KBF (S.D.N.Y. 2018).Super Lawyers named Illinois commercial law trial attorneys Peter Lubin and Vincent DiTommaso Super Lawyers and Illinois business dispute attorneys Patrick Austermuehle and Andrew Murphy Rising Stars in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation. DiTommaso Lubin Austermuehle’s Illinois business trial lawyers have over thirty years of experience in litigating complex class action, copyright, noncompete agreement, trademark and libel suits, consumer rights and many different types of business and commercial litigation disputes.  Our Burr Ridge and LaGrange business dispute lawyers, civil litigation lawyers and copyright attorneys handle emergency business lawsuits involving copyrights, trademarks, injunctions, and TROS, covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist Chicago and Oak Brook area businesses and business owners who are victims of fraud. You can contact us by calling (630) 333-0000 or our toll-free number (877) 990-4990.  You can also contact us online here.