News outlets handed right to appeal in embedded Tweets case
A federal judge has granted Time Inc, Yahoo and other news outlets the right to appeal a decision that they may have committed copyright infringement by embedding a Tweet.
District Judge Katherine Forrest, at the US District Court for the Southern District of New York, gave the news outlets, which include Heavy and Vox Media, the right to file an immediate appeal against the ruling at the US Court of Appeals for the Second Circuit.
In February, Forrest rejected the news outlets’ motion for partial summary judgment, finding that they may have infringed a photographer’s copyright by embedding an image from Twitter into news articles.
The closely-watched case involves an image of National Football League quarterback Tom Brady, taken by Justin Goldman in 2016. The image quickly went viral, appearing on social media sites including Twitter.
The news outlets re-published the image by embedding the tweets in news stories and Goldman responded with a copyright infringement suit, filed last April.
According to Goldman, he never publicly released or licensed the photograph.
Defendants argued that providing instructions to access the image by embedding the image doesn’t constitute displaying the picture.
But, in February 2018, Forrest said that the act of embedding the tweets violated Goldman’s exclusive right to display the image.
On Monday, March 19, Forrest granted the right to an immediate interlocutory appeal at the Second Circuit.
The court’s February decision “created tremendous uncertainty for online publishers”, acknowledged Forrest.
“In this case, the embedded image was hosted on Twitter; given the frequency with which embedded images are ‘retweeted’, the resolution of this legal question has an impact beyond this case.”
Forrest said that “in order to bring resolution to an important and controlling question of law and to more efficiently resolve the matter”, the court has allowed the appeal.
Ken Norwick, lawyer at Norwick & Schad and Goldman's representative, told WIPR: "Although we believe that much of the response to Judge Forrest's 'embed' decision was irresponsible and unwarranted, we look forward to having that decision affirmed on appeal."
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