Along with major media and online information enterprises, millions who merrily apply a feature of one of the planet’s leading social media platforms fast could find themselves on the wrong side of the law, potentially deemed to be infringers on copyrights of visual creatives  — all due to a post-Valentine surprise by a federal judge in Manhattan.

But the controversial protections accorded some online visuals in a Feb. 15 ruling by U.S. District Judge Katherine Forrest already have sparked such an outrage as a legal outlier that major media organizations more recently have sought and won the court’s permission for speedy appellate reconsideration of the case revolving round the embedding of Tweets in news reports.

The case turns in part on existing laws and rulings that an image shown on one website but stored on another website’s server can be found to infringe an owner’s exclusive display right, as protected by federal copyright laws. It stems from the 2016 media frenzy that erupted when NBA superstar Kevin Durant decided to exit the Oklahoma Thunder, and sports writers internationally worked themselves into a lather about where the high-scoring, lanky superstar would land. (Hint: He signed with the Golden State Warriors, and helped lead them to a lucrative and coveted NBA Championship.)

But back a few months ago, fans found a photo of Boston Celtics general manager Danny Ainge (himself once an gnarly NBA guard) and New England Patriots quarterback Tom Brady in the Hamptons, where the team had scheduled a parley with Durant, fueling speculation that the NFL superstar somehow was assisting the Celts in recruiting the NBA star.  

The peculiarity of this case stems from the origin of the Brady photo.  Photographer Justin Goldman snapped Ainge, Brady and others on the sidewalk, and then posted his picture to his Snapchat story, shared privately, with the exception of authorized users. But the photo quickly also was shared among others on Twitter and Reddit, ultimately finding its way to Yahoo, Breitbart and other online sites, including those operated by news organizations, including Gannett and the Boston Globe. The photo, embedded in Tweets, was used in online and news articles speculating about Durant’s relocation. As a result of the Twittter distribution of his photo, Goldman sued under §106(5) of the Copyright Act, asserting the defendants violated his exclusive right to display the photo.

The ‘Server Test’

The defendants unsuccessfully sought a ruling favorable to them on a motion for partial summary judgment. They argued that under the “Server Test,” they should not be held liable because the image displayed on their web pages was not downloaded into their systems but was part of the Twitter feature. They turned to a 2007 case, Perfect 10. Inc. v. Google Inc., 508 F.3d 1146 (9th Cir. 2007), in which the U.S.  Ninth Circuit Court of Appeal held that “full size images, which were stored on third-party servers” and accessed by “in-line linking”  — which works, like embedding, based upon the HTML code instructions  — were not infringements. In Perfect 10, the defendant operated a search engine where a user had to click on an image before it was displayed. The Ninth Circuit refused to hold search engines directly liable for in-line linking where users were seeking information. Moreover, when users looked up information they engaged in direct connection, whereas in the Goldman case sports fans did not actively engage in clicking a picture of Brady.

Forrest, in her Feb. 15 ruling, sided with Goldman, the shooter and plaintiff, with the judge stating both that: the Server Test leads to incongruous results with the Copyright Act; and even if the judges above her, those on U.S. Second Circuit Court of Appeals, were to find the Server Test consistent with the Copyright Act, it would not apply to these facts. 

Speedy appeal

The internet erupted over word of the decision favoring Goldman, with  the Electronic Freedom Foundation, an online advocacy group, objecting, saying: “We hope that today’s ruling does not stand. If it did, it would threaten the ubiquitous practice of in-line linking that benefits millions of internet users every day.” The tech publication Wired, quoted a news media advocacy group, and wrote: “Judge Forrest’s ruling is noteworthy because it could serve to legally complicate what has become a commonplace aspect of the internet. It also might start immediately changing how publications operate. ‘What media companies are going to do is they’re going to embed tweets with media without the media,’ says Peter Sterne, a senior reporter at the Freedom of the Press Foundation.”

Eric Goldman, a respected Santa Clara University law professor, told Courthouse News Service that Forrest’s ruling was “shocking” and “far reaching,” noting in a blog post that the judge appeared to “eliminate[] a bright-line rule that many internet actors rely upon.” He argued the ruling could upend prima facie liability: if Twitter infringed a copyright in a photo, any other website linking to that photo would then be on the hook, writing, “A single infringing upload by a Twitter user potentially virally contaminates everyone else — potentially thousands of people — unwittingly using the embed feature, exposing all of them to financially crippling copyright litigation.”

Photographer Goldman has stuck by his guns, arguing the media rush to get a speedy appellate review of Forrest’s decision was unwarranted. He also asserted that Forrest decided the case correctly, that his photo never entered into a public use, and that online sites’ profit-seeking and not their wish to protect press freedoms pushed their opposition to his copyright claims. There have been cases before in which the courts have slapped media outlets for infringing copyrights with Twitter, notably an incident involving the award of more than $1 million in damages to a news photographer over news outlets’ improper use of images he sent on an emergency basis via social media from quake-ravaged Haiti.

On March 19,  the court certified the Feb. 15, 2018 Forrest decision for interlocutory appeal, stating that the current finding has created tremendous uncertainty for online publishers where the impact of the case may change the landscape of the way current social media is used. Interlocutory appeal assures “prompt resolution of knotty legal problems.” Weber v. United States, 484 F.3d 154,159 (2d Cir. 2007).


Tom Brady photo credit: Andrew Campbell, Creative Commons