Beware! Embedded Photos and Copyright Infringement

Photo by PatriciaEnciso/iStock / Getty Images

The Copyright Act of 1976 was enacted to respond to rapid changes in technology and grants the owner of a copyright “exclusive rights,” which include, among others, the exclusive right to “display the copyrighted work publicly.” This right was seeming infringed in 2016 when a photographer by the name of Justin Goldman snapped a photo of Tom Brady, star NFL quarterback for the New England Patriots, Danny Ainge, GM and President of Basketball Operations for the Boston Celtics and several other high profile individuals. He never released his photograph through a public media outlet but did post the photo to his  Snapchat feed. The photo subsequently went viral.

Violation of Display Rights

Due to the viral nature of the photo and its dissemination through multiple social media outlets, the photograph eventually landed on Twitter where numerous media outlets such as Breitbart, Vox Media, The Boston Globe and Yahoo, to name a few, embedded tweets in their news articles which contained Goldman's photograph. These articles invariably discussed whether the Boston Celtics could recruit Kevin Durant to their team, and if so, whether Tom Brady would step in to help the team secure Durant in the offseason. Goldman sued these media outlets in Federal court in New York on grounds of copyright infringement alleging that the photograph was used and displayed without his prior consent. Ultimately, the court would have to determine how an image that is displayed on one website but stored on a server owned by another website would impact the display rights of a copyright owner, a determination that would have a direct effect on any photographer, journalist or online media outlet.

The Decision

The defendants were concerned that if Goldman were victorious with his lawsuit, that it would “radically change linking practices, and thereby transform the Internet as we know it.” In its defense, the defendants asked the court to rely on the Perfect 10 "Server Test"  to limit the scope of display rights in this case. The "Server Test" came about from the case Perfect 10, Inc. v., Inc., 508 F.3d 1146 (9th Cir. 2007) where the 9th circuit reviewed a claim of infringement against Google for its Google Image Search function and ultimately held that "whether a website publisher is directly liable for infringement turns entirely on whether the image is hosted on the publisher’s own server, or is embedded or linked from a third-party server." The Judge was not persuaded by this argument, noting the glaring differences in context between the two cases, ultimately holding that the mere fact that an image is hosted on a server that is owned and operated by an unrelated third party does not shield the defendants from liability for violating Goldman's exclusive display rights.

This result is not dispositive of the case as a whole, but was in response to the motion for summary judgment filed by the Defendant. 

To read the decision in its entirety click below

Read the Full Case Decision Here

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