Welcome back to Legal Geek. This week, we cover a recent case from New York about embedding tweets into news articles that may lead to a circuit split of opinion and Supreme Court litigation on what constitutes copyright infringement. Who knew embedding a tweet could have such dire consequences?
The case is entitled Goldman v. Breitbart News Network, and it was decided in late February at a New York federal district court. Justin Goldman is a photographer who captured an image of Tom Brady speaking with Boston Celtics GM Danny Ainge in July 2016, and then posted it on Snapchat. This phot went viral and was shared by many others on other platforms like Twitter. That also led to a slew of news articles with speculation of how Brady and Ainge might be working together.
These news articles came from sources such as Yahoo, Time, Gannett, and the Boston Globe, with many of the articles embedding tweets of other Twitter users containing Goldman's photo. Goldman filed suit and claimed such a practice was copyright infringement of his photograph.
Embedding tweets works by displaying the content of another server or site, in this case Twitter, in the middle of a news article when published online. Thus, the news publishers never stored a copy of the picture on their servers, and this was argued by the news companies as decisive proof of no copyright infringement.
This theory is based on a 9th Circuit Court of Appeals case called Perfect 10 v. Amazon, which occurred in California. In that case, Google was being sued for copyright infringement for showing nude or suggestive images originally from the Perfect 10 magazine when google image searches led to sites having this content. That case drew an interesting distinction between the showing of thumbnails in the initial search, and the full size images shown when a user would click on a corresponding thumbnail image. The full size images were shown by in-site linking to the other sources, while the thumbnails were stored on Google's server, and this storage was deemed to make the thumbnails copyright infringement. In other words, linking or embedding an image from another source is not a prohibited display of a copyrighted work because it was never stored on the server of the infringer.
The New York court explicitly questioned whether the Perfect 10 decision was correct in concluding the opposite in this case, that copyright infringement exists when embedding tweets with images even though there is no local storage of the image by the news sites. Thus, the photographer wins at this level, although you can likely expect this to be appealed by the big publishers to the Second Circuit Court of Appeals, and then to the Supreme Court if they don't win at the intermediate level. If this occurs, this is precisely the type of split in law or interpretation between circuit courts that usually leads to the Supreme Court taking a case and rendering a decision. So embedding a tweet could lead all the way to the Supreme Court.
Most social network terms of service force you to sign away such IP rights claims against them, but this waiver interestingly does not stretch to those who repeat content from those social networks, at least in the judgment of this court. Just another fascinating quirk of this case.
The Bottom Line is, the lines of what constitutes copyright infringement can be ever-changing in the field of online publishing, and that's even when there's no fair use claim, as in this case. Sometimes the most seemingly innocuous action can lead to the highest courts, and we will keep our eyes on this possibility in this case.
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