INSIGHT

Brace for the Twitterstorm – US appeals court to decide whether embedded Tweets infringed copyright

By Miriam Stiel
Consumer law Industrials Intellectual Property Litigation Mergers & Acquisitions Patents & Trade Marks

In brief

A US district court judge has found that several online publishers infringed copyright when they embedded Tweets featuring a photograph protected by copyright. The decision has now been appealed, and could have far-reaching consequences for online media outlets. Lawyer Anna Conigrave reports.

Background

In July 2016, Justin Goldman took a photo of Tom Brady (an NFL player), Danny Ainge (the general manager of the Boston Celtics NBA team) and others in the street. Goldman then uploaded the photo to his Snapchat Story. The photo subsequently went viral on social media platforms, including Twitter.

A number of online publishers picked up Goldman's photo and displayed it alongside articles relating to the Boston Celtics' efforts to recruit basketball player Kevin Durant. Relevantly, the publishers did not download the photo and store it on their own servers. Instead, they embedded Tweets that featured the photo (and were hosted on Twitter's server) into their articles.

'Embedding' is a technical process, which involves adding an 'embed' code to the HTML code for a webpage. The embed code integrates content (eg an image or video) hosted on a third-party server into the webpage. The result is that when a user visits the webpage, they can see the content, without having to click on a hyperlink or do anything else.

In April 2017, Goldman commenced proceedings in the US District Court for the Southern District of New York against online publishers, including Time, Inc. and Yahoo, Inc., for violation of his exclusive right to display his photo. Following a motion for partial summary judgment by several of the defendants, in February 2018, Judge Katherine Forrest granted partial summary judgment to Goldman (Goldman v Breitbart News Network, LLC, No. 17-CV-3144 (KBF) (S.D.N.Y. Feb. 15, 2018)).

Findings and reasons

Judge Forrest found that the defendants had violated Goldman's exclusive display right. She rejected their argument that the 'Server Test' established in an earlier case (Perfect 10, Inc. v Amazon.com, Inc 508 F.3d 1146 (9th Cir. 2007)) should apply. Under that test, an online publisher only 'displays' an image if it is hosted on the publisher's server. Judge Forrest said that the US Copyright Act and Supreme Court jurisprudence 'provide no basis for a rule which allows the physical location or possession of an image to determine who may or may not have "displayed" a work'. She also distinguished Perfect 10 on its facts.

Pending appeal

In March 2018, Judge Forrest granted the defendants' motion to certify her decision for interlocutory appeal. She acknowledged that her decision had 'created tremendous uncertainty for online publishers'.

The state of the law in Australia

The Australian courts are behind in this area of law – they have not yet considered whether embedding or hyperlinking might constitute direct copyright infringement. The closest they have come is Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380. In that case, the operator of a website that provided hyperlinks to websites containing infringing sound recordings was found to have authorised copyright infringement. Therefore, whichever way the Goldman v Breitbart appeal goes, it could be instructive as to how similar cases would be decided in Australia – we eagerly await the outcome!