A conclusion has been reached in what is described as a “landmark California case,” where a photographer sued numerous media outlets for embedding his photo of Tom Brady within news articles. The photographer originally posted the picture on Snapchat, from where it was then posted by internet users on Twitter, the posts of which the media used as their embeds.
As the story goes, photographer Justin Goldman posted a photo of Tom Brady and Celtics general manager Danny Ainge to Snapchat, back in 2016. It then spread across the internet, raising speculation that Brady was helping the Celtics recruit basketball player Kevin Durant. Naturally, the photo ended up on other social media sites, such as Reddit and Twitter. From here, media outlets covering the speculation proceeded to embed the tweets with the image into their articles.
This week, the major copyright suit, which has been raising questions about the way media companies do business online in regards to image usage, was voluntarily dismissed after a settlement was allegedly reached with Time Inc. and with consent from the last remaining defendants, Oath (formerly Yahoo!) and Heavy.com.
Goldman has filed lawsuits against these companies and a number more. He claimed the sites in question infringed on his copyright, in particular, that they violated his exclusive right to display his photo. The media defendants hit back to say there was no infringement since the image wasn’t hosted on any of their sites. After all, it was technically hosted on Twitter and simply embedded on their own sites.
However, Judge Katherine Forrest has now ruled in Goldman’s favor, concluding:
Having carefully considered the embedding issue, that when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield from this result.
Generally, liability for infringement lies with the image’s host, for example, where it is embedded. If it’s stored on a third-party server and accessed by “in-line linking,” which works like embedding, then it’s considered there is no infringement. But the judge ruled that any user of the media’s sites would see a mix of text and photos that are collectively integrated, even if the underlying images are hosted elsewhere.
The media defendants inquired about an immediate appeal, warning it would “cause a tremendous chilling effect on the core functionality of the web.” Judge Forrest granted the appeal due to it being a “high-impact copyright case,” where opinions might differ. But the Second Circuit declined to take on the case, finding an interlocutory appeal “unwarranted.”