Embedded Tweet May Constitute Copyright Infringement

Advertising Law

In a decision making headlines, 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 image went viral, moving through multiple social media platforms and making 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 onto their own servers.

Goldman 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 Judge Katherine B. Forrest sided with the plaintiff.

In considering the right to display a copyrighted work, the court wrote, “Congress cast a very wide net, intending to include ‘[e]ach and every method by which the images … comprising a … display are picked up and conveyed,’ assuming that they reach the public,” including the projection of an image on a screen or other surface by any method.

One way that courts have addressed the display right in the 21st century has been the “server test” enunciated by the U.S. Court of Appeals, Ninth Circuit in Perfect 10, Inc. v. Amazon.com, Inc. In that case, the court said liability turned on whether the image is hosted on the website publisher’s own server, or is embedded or linked from a third-party server.

But the New York court was not persuaded by the defendants’ argument that Perfect 10 was part of an unbroken line of authority, noting that the server test “has not been widely adopted” and “the case law in this area is somewhat scattered.”

Instead, Judge Forrest found the server test led to results incongruous with the purposes and text of the Copyright Act.

“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.”

In the case of Goldman’s picture, the defendants “actively” took steps to display the image by embedding code into the stories so the photos could be transmitted and visibly shown.

“Properly understood, the steps necessary to embed a Tweet are accomplished by the defendant website; these steps constitute a process,” the court wrote. “The plain language of the Copyright Act calls for no more.”

The court granted partial summary judgment to the plaintiff.

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

Why it matters: Judge Forrest acknowledged the defendants’ contention that finding for the plaintiff would cause “a tremendous chilling effect on the core functionality of the web” and “radically change linking practices.” But she also noted that the case remains far from over, with “a number of yet unresolved strong defenses to liability” that include genuine questions about whether Goldman effectively released his image into the public domain when he posted it to his Snapchat account and whether “a very serious and strong fair use defense” could be upheld.



pursuant to New York DR 2-101(f)

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