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16 February 2018Copyright

News outlets receive copyright blow in Twitter image case

A US district judge has delivered a blow (pdf) to several news outlets in a copyright infringement case involving the embedding of a Twitter image of National Football League star Tom Brady.

In July 2016, Justin Goldman took a photograph of Brady and uploaded it onto his Snapchat story. The image quickly went viral and travelled through different social media platforms.

It eventually found itself on Twitter, after being uploaded by several users. News outlets including Yahoo,  The Boston Globe and  Breitbart News published the image by embedding the tweets in news articles.

In April 2017, Goldman filed a copyright infringement case (pdf) at the US District Court for the Southern District of New York. Alongside the above mentioned news outlets, Heavy, Vox Media, Gannett Company, Herald Media and the New England Sports Network were also sued.

Goldman claimed that he never publicly released or licensed the photograph, and alleged that the defendants violated his exclusive right to the display his photo.

In October 2017, the defendants filed a motion for partial summary judgment.

District Judge Katherine Forrest said that at the time the Copyright Act was amended in 1976, the words “tweet”, “viral” and “embed” evoked different meanings than they do now due to the development in technology.

“That technology and terminology change means that, from time to time, questions of copyright law will not be altogether clear.”

None of the defendants actually downloaded the photo from Twitter, copied it or stored it onto their own servers. Instead, each defendant embedded the image in a story.

In their defence, the news outlets cited the ‘Server Test’, which determines that whether the website publisher is directly liable for infringement depends on if the image is hosted on the publisher’s own server or is embedded from a third-party server.

According to the defendants, merely providing instructions to access the image by embedding it does not constitute displaying the picture.

The plaintiff argued that to adopt the Server Test broadly would have a “devastating economic impact on photography and visual artwork licensing industries”. Goldman also said that it would eliminate the incentive for websites to pay licensing fees.

The court decided that when the defendants embedded the tweets on their websites, the actions violated Goldman’s exclusive display right. It ruled that “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”.

As a result, the defendants’ motion for partial summary judgment was denied.

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