MANHATTAN (CN) – A federal judge sparked division in the digital-media realm by finding that media outlets had violated a photographer’s copyright by embedding a tweet that contained his work in a report about New England Patriots quarterback Tom Brady.
Among those to meet the Feb. 15 ruling with swift condemnation was the Electronic Frontier Foundation. The online civil liberties group said U.S. District Katherine Forrest had empowered copyright claims against “millions of ordinary Internet users” who might link to an image online.
But Doniger Burroughs technology attorney Scott Burroughs took a different tack.
“We see this almost every time there is a ruling that benefits an artist over Big Tech,” Burroughs said in a phone interview.
“I think the court got it exactly right,” he said. “It focused on the effects of the final project on the viewer, instead of the hyper-technical structural issues. There is absolutely no reason to allow a website proprietor to avoid liability just because they are broadcasting via an embed versus an upload.”
Justin Goldman brought the underlying lawsuit in in New York last year after his candid photograph of Tom Brady walking the streets with an NBA team owner went viral.
While reporting on Brady’s possible role in an NBA deal, Breitbart and the other media outlets did not post the photo itself, but their online articles embedded a Tweet that included the photo.
The outlets claimed that such use was protected by a 2007 ruling out of the Ninth Circuit, Perfect 10 v. Amazon, which held that a website could publish photos from a third party as long as the photo was not hosted on the website’s own server.
Rejecting this argument, however, Forrest found last week that none of the four courts in her district that have discussed the so-called “server test” have adopted it for the display right.
Attempting to address the evolution of online copyright law, Forrest noted that Twitter, Snapchat and emerging social media platforms have muddied the waters on the limits of linking to copyrighted works.
“When the Copyright Act was amended in 1976, the words ‘tweet’, ‘viral’ and ‘embed’ invoked thoughts of a bird, a disease, and a reporter,” she wrote. “Decades later, these same terms have taken on new meanings as the centerpieces of an interconnected world wide web in which images are shared with dizzying speed over the course of any news day.”
Technological ambiguity aside, Forrest wrote that the act seems fairly clear in opposing a “rule that allows the physical location or possession of an image to determine who may or may not have ‘displayed’ a work.”
“It is clear,” Forrest wrote, “that each and every defendant itself took active steps to put a process in place that resulted in a transmission of the photos so that they could be visibly shown.”