Appellate Courts Pass on Embedded Link, Publicity Rights Cases

Advertising Law

In appellate news, the U.S. Court of Appeals for the Second Circuit declined to consider a high-profile copyright case involving embedded links while the California Supreme Court passed on actress Olivia de Havilland’s publicity rights challenge to an FX television show.

In February, a New York federal court judge held that a tweet embedded in news stories may constitute copyright infringement.

Photographer Justin Goldman took a picture of New England Patriots quarterback Tom Brady, Boston Celtics general manager Danny Ainge and others in July 2016 and uploaded the image to his Snapchat account. The picture went viral, moved through multiple social media platforms and made its way to Twitter, where several users uploaded the photo and then tweeted it out with comments.

Online news outlets and blogs then published articles featuring the photo. Each of the sites embedded a tweet into the articles, which discussed whether the Celtics would successfully recruit Kevin Durant and whether Brady was helping with the deal. None of the news sites copied and saved the photo to their own servers.

Goldman then sued the various news sites and blogs, asserting they infringed the copyright he held in the picture. Both sides moved for summary judgment.

Emphasizing that Congress intended that the Copyright Act apply “familiar guiding principles” to “previously uncontemplated technologies,” U.S. District Court Judge Katherine B. Forrest sided with the plaintiff.

“The plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence 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 Copyright Act,” the court said. “Nowhere does the Copyright Act suggest that possession of an image is necessary in order to display it. Indeed, the purpose and language of the Act support the opposite view.”

The defendants sought interlocutory appeal with the Second Circuit—warning that the decision would result in “a tremendous chilling effect on the core functionality of the web”—but the federal appellate court denied the motion.

Now back before the district court, the dispute will likely turn to other issues such as whether Goldman effectively released the image into the public domain when he posted it to his Snapchat account and/or a fair use defense from the news sites and blogs.

Across the country, California’s highest court dashed the hopes of 102-year-old de Havilland, who sought to appeal a March decision from a state appellate panel. She sued FX and Ryan Murphy last year, claiming that the television series “Feud: Bette and Joan” contained an inaccurate portrayal of her that violated both her privacy and publicity rights.

The defendants countered with an anti-SLAPP (strategic lawsuit against public participation) motion. A trial court sided with the actress and allowed the suit to move forward, but in March an appellate panel reversed.

“Whether a person portrayed in one of these expressive works is a world-renowned film star—‘a living legend’—or a person no one knows, she or he does not own history,” the court wrote. “Nor does she or he have the legal right to control, dictate, approve, disapprove or veto the creator’s portrayal of actual people.”

de Havilland appealed to the state’s highest court, arguing that the use of a living celebrity’s name and likeness in a realistic portrayal cannot be considered “transformative” under a fair use analysis. The court also needs to tackle the connection between publicity right claims and anti-SLAPP procedures, the actress argued.

But the California Supreme Court was not persuaded to take the case, leaving the appellate court’s decision in place.

To read the opinion and order in Campbell v. Breitbart News Network LLC, click here.

To read the opinion in de Havilland v. FX Networks, LLC, click here.

Why it matters: With the Second Circuit passing on the Campbell action, the copyright infringement issue will return to the district court and move forward with the possibility of trial against the news outlets, while de Havilland has likely hit the end of the road in her closely watched case.