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Just because it's on Twitter doesn't mean it's free to use - how embedding Tweets constitutes copyright infringement

I originally wrote this article for Fordham's Intellectual Property, Media & Entertainment Law Journal.  You can find the original post here.

G.O.A.T., or Goldman Obliterates Appropriated Tweets?: New York District Court Puts Embedded Tweets to Bed

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Tom Brady is no stranger to the Southern District of New York. In the summer of 2015, Judge Richard Berman of the Southern District vacated his suspension from the infamous “Deflategate” scandal.  Now, Tom Brady plays a different role in an important ruling from the Southern District – but this time, he’s watching from the sidelines. The Southern District analyzed whether an image that is shown on one website, but hosted on another website’s server, infringes on a copyright owner’s exclusive display right. To everyone’s surprise, the Southern District held that a practice used by almost every online media outlet constitutes copyright infringement.

The Copyright Act defines the subject matter of copyright generally as “original works of authorship fixed in any tangible medium of expression . . . from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” A photograph is copyrightable, and the author of photographic copyrights receives the exclusive right to reproduce the photograph, to prepare derivative works based upon the photograph, to distribute copies of the photograph to the public, and to display the photograph publicly.

In 2016, Justin Goldman photographed New England Patriots quarterback, Tom Brady, and Boston Celtics general manager, Danny Ainge, together in the Hamptons. The photo was taken when speculation that Kevin Durant would be joining the Celtics was at its height during NBA free agency. Goldman uploaded the photo to Snapchat, which was then uploaded to Twitter by various individuals.  Since the photo was extremely newsworthy at the time, several news publications, including Breitbart, Yahoo, and The Boston Globe, embedded the Tweets into their news stories, where the photo was prominently displayed.

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Goldman sued several publications for copyright infringement, arguing that their act of embedding his photo into their stories, which he did not publicly release or license, violates his exclusive right to display his photo under § 106(5) of the Copyright Act. The news companies argued that they cannot be liable for copyright infringement because they never hosted the photo on their servers since embedding the Tweet into their news stories allowed the photo to remain on Twitter’s server at all times.  In addition, it is undisputed that none of the publications actually downloaded and then uploaded the photo to their website.

After hearing the defendants’ motion for partial summary judgment, Judge Katherine B. Forrest held that “when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; 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.

The case turns on the difference between embedding and linking. The main difference between the two is where the data is stored. The defendants argued that the “Server Test” is the correct test to determine the scope of the display rights. The Server Test determination of direct copyright 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 Southern District disagreed. The Server Test, which the Court states is settled law in the Ninth Circuit, does not and should not apply here. The test has not been widely adopted outside of the Ninth Circuit, and even mentions that “there are critical factual distinctions between Perfect 10 and this case such that, even if the Second Circuit were to find the Server Test consistent with the Copyright Act, it would be inapplicable here.”

“Nowhere does the Copyright Act suggest that possession of an image is necessary in order to display it[,]” and defendants actively took steps to “display” the image.  The Court notes that it “sees nothing in either the text or purpose of the Copyright Act suggesting that physical possession of an image is a necessary element,” and therefore the defendants have violated the Copyright Act.

This ruling, which will likely be appealed, obfuscates the issue of how individuals and companies alike should use embedded photographs that they do not own. Until then, online publishers will do well to ensure they receive permission before embedding photographs into their publications.

Think for yourself - copying the copycat call out is still copying

Think for yourself - copying the copycat call out is still copying

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