Copyright Infringement and Embedded Photos: A Photo of Tom Brady Goes Viral and Raises Challenging Copyright Issues for Publishers

By Moorman, Anita M. | Sport Marketing Quarterly, June 2018 | Go to article overview

Copyright Infringement and Embedded Photos: A Photo of Tom Brady Goes Viral and Raises Challenging Copyright Issues for Publishers


Moorman, Anita M., Sport Marketing Quarterly


Background

The U.S. District Court for the Southern District of New York recently decided a novel case representing the delicate intersection of copyright laws enacted in the 1970s and rapidly developing new communication technologies (Goldman v. Brietbart News Network, 2018). In this case, the plaintiff Justin Goldman snapped a photograph of Tom Brady (the "photo"), Danny Ainge, and others on the street in East Hampton. He then uploaded the photograph to his Snapchat story and the photo went "viral"-traveling through several levels of social media platforms and finally onto Twitter, where it was uploaded by several users, including the defendants. The defendants then embedded the tweet on their websites alongside articles they wrote speculating whether Tom Brady was actively helping the Boston Celtics recruit basketball player Kevin Durant. The plaintiff filed suit for copyright infringement of his exclusive right to display his photo under ?106(5) of the Copyright Act.

Defendants are online news outlets and blogs who published articles featuring the photo. Each of defendants' websites prominently featured the photo by "embedding" the tweet into articles they wrote over the 48 hours following Goldman's original social media post. The articles were all focused on the issue of whether the Boston Celtics would successfully recruit basketball player Kevin Durant and if Tom Brady would help to seal the deal (e.g., Pescaro, 2016). None of the defendant websites copied and saved the photo onto their own servers. Rather, they made the photo visible in their articles through a technical process known as "embedding." To embed an image, the coder or web designer would add an "embed code" to the HTML instructions that directs the browser to a third-party server to retrieve the image. All of defendants' websites included articles about the meeting between Tom Brady and the Celtics with the full-size Photo visible without the user having to click on a hyperlink or a thumbnail in order to view the photo.

The Claims and Arguments of the Parties

The plaintiff, Goldman, asserts that the defendants' actions violate the exclusive right to display a work protected by The Copyright Act of 1976. The defendants framed the issue as one in which the physical location and/or possession of an allegedly infringing image should determine liability under the ?106(5) exclusive display right. The defendants argue that they simply provided "instructions" for the user to navigate to a third-party server on which the photo resided. According to defendants, merely providing instructions does not constitute a "display" by the defendants as a matter of law. The defendants urged the court to follow what is known as the "Server Test" adopted by the Ninth Circuit Court of Appeals in Perfect 10, Inc. v. Amazon.com, Inc. (2007). The defendants argued that Perfect 10's Server Test is settled law that should determine the outcome of this case. The plaintiff first objected to the correctness of the Server Test due to its incompatibility with the purpose and text of the Copyright Act and further argued that even if the Server Test was correctly applied in Perfect 10, or in cases in which users takes a volitional action of their own to display an image, it is inappropriate in this case because the user took no action to "display" the image while visiting the defendants' websites.

Reasoning and Decision of the District Court

As the district court notes "when the Copyright Act was amended in 1976 the words "tweet," "viral," and "embed" invoked thoughts of a bird, disease, and a reporter. Decades later these same terms have taken on new meanings as the centerpieces of an interconnected worldwide web in which images are shared with dizzying speed . . ." (Goldman v. Breitbart, 2018, p. 2). However, the copyright laws have continually developed in response to significant changes in technology. In resolving this case, the district court first provided an analysis of the "display rights" included in the Copyright Act of 1976. …

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