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Tuesday, March 6, 2018

Embedding Photo Could Violate Copyright Act

The rapid rise of social media has created a number of new legal questions and, in most cases, the law is slow to catch up with technology. One example is the Copyright Act, which does not reference "tweet," "viral," or "embed" - all of which were at issue in a recent federal case out of New York. Goldman v. Breitbart News Network, LLC, et seq.

This dispute involved the use of a copyrighted photo. Goldman had snapped a photo of Tom Brady in East Hampton in 2016. After he loaded the photo to his Snapchat account, the image went "viral" on a number of social media platforms, including Twitter. Defendant Breitbart and other news outlets and blogs published a variety of articles featuring Goldman's photo of Tom Brady. None of these outlets copied and saved the photo on their own servers, but instead all "embedded" the image through Twitter's social media platform's program. 

Goldman's lawsuit claims that all of the defendant news outlets violated the Copyright Act by embedding his copyrighted photo without his permission or consent. The news outlets argued that  because they did not copy and store the photo on their own servers, there was no infringement of Goldman's copyright. Defendants claim that "embedding" the photo did not display it, but merely provided instructions for the user to navigate to the page where the photo resided.

The court rejected the news outlets' argument that to establish a Copyright Act violation, Goldman had to show that the outlets actually "possessed" the image on their own server. Instead, the court determined that the "Server Test" was not the standard that would be applied to decide copyright cases involving the use of online images and photographs. 

Obviously, this case could have far-reaching implications for social media users who routinely embed copyright-protected material through their own sites and accounts. The case is not over yet, however, because the court acknowledged that the news outlets still have a number of potential defenses to Goldman's copyright claims, including "a very serious and strong fair use defense." So, this case will move forward and, hopefully, provide guidance on what potential defenses are available under the Copyright Act to protect social media users who link and embed photos and other images.

Post Authored by Julie Tappendorf


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