Federal Judge Rules Embedded Tweet Violated CopyrightFebruary 21, 2018

In a surprising ruling, U.S. District Court Judge Katherine B. Forrest, recently ruled that several news organizations and publishers violated a photographer’s copyright when they “embedded” a photo from Twitter on their websites without permission. Judge Forrest’s decision to grant the plaintiff’s motion for partial Summary Judgement is sure to be controversial and could prove to be very significant, potentially disrupting the way that news outlets and other websites use Twitter.

Photographer Justin Goldman took a photograph of New England Patriots’ quarterback Tom Brady and uploaded the photo to Snapchat. The photo went viral with others uploading it to Twitter and subsequently, various news organizations embedded the tweets with the image included in news stories. Goldman filed the lawsuit against Breitbart, Time Inc., Yahoo, The Boston Globe, and multiple other defendants claiming they violated his exclusive right under U.S. Copyright law to display his photo. It’s important to note that none of the defendants copied or saved Goldman’s photo to their own servers, rather they embedded links to Twitter, on their own websites.

The news organizations argued that the “Server Test” held that the publishers aren’t liable for infringement when they embed content hosted on third party servers. The Server Test is based on a 9th Circuit ruling, but Judge Forrest noted that outside of the 9th Circuit, the test has not been widely adopted, thus allowing her to depart from the application of the Server Test.

Judge Forrest ultimately decided, “Having carefully considered the embedding issue, this Court concludes, for the reasons discussed below, 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.”

However, the ruling doesn’t mean the news organizations have necessarily lost the case. Judge Forrest notes a number of unresolved strong affirmative defenses to liability and states, “In this case, there are genuine questions about whether plaintiff effectively released his image into the public domain when he posted it to his Snapchat account,” and goes on to say, “Indeed, in many cases there are likely to be factual questions as to licensing and authorization. There is also a very serious and strong fair use defense, a defense under the Digital Millennium Copyright Act, and limitation on damages from innocent infringement.“

Brandon W. Clark is the Chair of the Copyright, Entertainment & Media Law Practice Group at McKee, Voorhees & Sease, PLC. For additional information, please visit www.ipmvs.com or contact Brandon directly via email at brandon.clark@ipmvs.com.

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