Does your business or publication link or embed copyrighted content on your website or social media? If you routinely do the latter, a recent decision in the U.S. District Court for the Southern District of New York suggests that the tide is turning to the former.

Although this holding is merely persuasive outside of the Southern District of New York, there is a possibility that other districts could adopt the same reasoning, finding businesses liable for violating a copyright holder’s right of display by embedding content from third-party servers.

The copyrighted photo at issue in this case, Goldman v. Breitbart et al., was an image of Tom Brady, New England Patriots quarterback, and Danny Ainge, the general manager of the Boston Celtics, among others, in East Hampton. After the image was uploaded to Snapchat by the copyright owner, it went viral and was uploaded by users to Twitter. The defendant media outlets then published articles regarding the photograph, embedding Tweets including the photo, speculating whether Brady was assisting the Celtics with recruiting Kevin Durant, an All-Star NBA small forward. By “embedding” the photograph, the publications did not store the copyrighted image on their own servers. Instead, they retrieved the photograph from third-party servers, but the entire photograph was visible within their articles, without users having to click on a hyperlink or thumbnail.

Analyzing whether the media outlets were liable for copyright infringement of the plaintiff’s right to display the image, Judge Katherine Forrest noted that although embedding technology was likely not contemplated by the drafters of The Copyright Act of 1976, the drafters “intended copyright protection to broadly encompass new, and not yet understood, technologies.” Coming to its decision, the Court also distinguished the case at hand from Perfect 10, Inc., a seminal case in the Ninth Circuit addressing copyright infringement online. That case held that Google was not liable for direct copyright infringement when it provided access to full-sized images on third-party servers via “in-line linking”. The Court declined to adopt the reasoning in Perfect 10 after highlighting the following:

  • the Perfect 10 “Server Test” was not widely adopted outside of the Ninth Circuit;
  • the plain language of the Copyright Act provides 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”;
  • the Defendants did not operate a search engine; and
  • “users did not [make] an active choice to click on an image before it was displayed.”

As a result of the distinctions above, the Court granted partial summary judgment in favor of the copyright owner. Publications and website owners take note: Instead of embedding copyrighted material directly onto a website, you should provide a link to the copyrighted content where users may access it for themselves.