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Tom Brady Photo Leads to Court Decision Limiting Linking
Posted On March 6, 2018
Linking to copyrighted text and images through Twitter and other social media platforms just got a whole lot more complicated thanks to a recent decision by a federal judge in New York.

Tweets including a photograph of New England Patriots quarterback Tom Brady, which was initially posted to Snapchat, were subsequently embedded in articles in a number of news services’ websites. Finding that including the embedded photo violated the copyright owner’s display right, the U.S. District Court for the Southern District of New York held that publishing the photo without permission or a license from the copyright owner was copyright infringement. If the decision is upheld, it could change the way content is linked to on the internet.

If Kevin Durant Weren’t So Popular …

The story that led to this decision is a routine one in the digital age. Justin Goldman happened upon Tom Brady and Danny Ainge, general manager of the Boston Celtics, on the street in East Hampton, N.Y., took their picture, and posted it to Snapchat. The picture went viral and was eventually tweeted and retweeted by various users other than Goldman. At the time, the Boston Celtics were trying to recruit Kevin Durant to join the team, and the meeting between Ainge and Brady was likely related to engaging Brady in that effort. Because of the news interest in the meeting, the tweets containing the photo were published in a number of online articles on the Durant story (search “Tom Brady and Danny Ainge” on Google Images to see the photo).

Critical to the legal issues raised by the case are the online publications that embedded the photo in their articles. Embedding is similar to linking in that the photo is not uploaded or copied into the article; instead, a particular type of HTML is coded into the article. The browser identifies that code, hyperlinks to the photo, and presents it to the viewer along with the article’s text and other content as a complete webpage. At no time is the photo copied or uploaded, but the end user is unable to discern this difference—the photo is simply displayed on the webpage.

When people get a copyright for a creative work such as a photo, they get to control how that work is used in a number of ways, including the right to control the making of copies, the right to control the creation of derivative works, and the right to control publication. For graphic images, the copyright also includes the right to control how those works are displayed. Any person who displays the work must obtain permission, license the work, or be able to identify fair use or another copyright exemption in order to avoid liability.

Court Says the Server Test Is Not a Perfect 10

Goldman sued a number of media companies that ran articles including his photo, such as Breitbart News, Yahoo, Gannett, and The Boston Globe. He was supported in his suit by a number of photo providers and photography organizations, such as Getty Images, the American Society of Media Photographers, the National Press Photographers Association, and the North American Nature Photography Association. Goldman argued that the Copyright Act is not concerned with where a photo or copyrighted work is stored. It focuses on communication of the image through a process “now known [when the Copyright Act was established in 1976] or later developed.”

The defendants argued that the issue was settled more than 10 years ago by a court precedent known as the Server Test. This arose in a case involving an adult website called Perfect 10, whose copyrighted photos showed up in Google search results as thumbnail-size versions. Those thumbnail images had been copied and were stored on Google. If users clicked on the thumbnail link, they were taken via an in-line link to a third-party website where the full-size images were stored. Perfect 10’s Server Test therefore based infringement on where the image was housed. As long as it remained housed in and could be accessed from a remote server, it was not infringement.

The Goldman court, however, disagreed, and it found that the Server Test was too limited. The court referenced the language of the Copyright Act, which does not require that one possess an image in order to display it; the language focuses on transmitting and communicating rather than displaying. It pointed out that the defendants had to take several active steps in order to display the images, including navigating to Twitter, uploading the URL, drafting the code, and embedding the image. By taking those active steps, the defendants engaged in a process to violate Goldman’s display right. In the words of the court, “The plain language of the Copyright Act calls for no more.”

The court also noted that in the Perfect 10 case, in order for the user to view the full-size images (as opposed to the thumbnails), he or she had to take an active step to click on the thumbnail and be taken to the remote server to view the actual image. This active step is a critical distinction in the court’s view. In the Goldman case, the image is included with the text in a unified webpage, requiring no additional active step by the user.

Lastly, the court noted that since the Perfect 10 Server Test was adopted in 2007, very few courts have followed it, and none have specifically applied it to the Copyright Act’s right of display. By contrast, the court cited a case in which a trademark was found to be infringed when there was a “seamless presentation” of that trademark on a website that sold CDs, even though the actual mark was displayed using an in-line linking framing device.

‘Proceed With Caution’

A number of commentators have expressed concern about the Goldman decision, with one going so far as to suggest that it could “threaten millions of ordinary Internet users with infringement liability.” More likely, commercial media, news, and publishing companies will need to be concerned about their liability risk for publishing images obtained from social media and will have to “proceed with caution.” In researching this NewsBreak, I was able to locate the Goldman photo through Google Images; however, several archived news articles about the Brady-Ainge meeting no longer include the image.

As a federal trial court decision, its reach is fairly limited. However, it would be considered binding in the New York federal courts, and with New York being a magnet for publishing and media, its impact will likely be heavily felt. The Perfect 10 Server Test arose out of a federal appeals court in California, which suggests an “East Coast/West Coast Rift” that may ultimately end up in the hands of the U.S. Supreme Court. Until then, the takeaway is to link and embed carefully.

George H. Pike is the director of the Pritzker Legal Research Center and a senior lecturer at the Northwestern University School of Law. He teaches legal research, intellectual property, and privacy courses at the School of Law in both the J.D. and Northwestern’s innovative Master of Science in Law program. Prof. Pike is a frequent lecturer on issues of First Amendment, copyright, and Internet law for library and information professionals. He is also a regular columnist and writer for Information Today, publishing a monthly column on legal issues confronting information producers and consumers. Previously, Prof. Pike was director of the Law Library at the University of Pittsburgh School of Law, and held professional positions at the Lewis and Clark Law School and at the University of Idaho School of Law, and was a practicing attorney in Idaho Falls, Idaho. Prof. Pike received his B.A. degree from the College of Idaho, his law degree from the University of Idaho, and his Masters in Library Science from the University of Washington. He is a member of the American and Idaho State Bar Associations, the American Association of Law Libraries, and the American Intellectual Property Lawyers Association.

Email George H. Pike

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