United States: Embedded Tweets Violate Exclusive Display Right, Setting Up Possible Showdown At SCOTUS, And Cause Uncertainty For Website Operators

Finding that drafters of the Copyright Act amendments in 1976 foreshadowed the technological advances that were coming, on February 15, 2018, U.S. District Judge Katherine B. Forrest rejected defendants' motion for partial summary judgment in a case involving the embedding of an image, and called into question the applicability and rationale behind the 2007 ruling by the Ninth Circuit Court of Appeals in Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). The Server Test advanced in Perfect 10 had underpinned the growth of websites offering content that used images stored on other websites through in-line linking, framing and embedding − coding techniques that permit the display of content served from other sources.


In Goldman v. Breitbart News Network et al., SDNY Case No.17-CV-03144, plaintiff Justin Goldman had commenced suit against Breitbart and other media outlets for copyright infringement for publishing articles featuring a photograph taken by Mr. Goldman on July 2, 2016. The photograph of Tom Brady, Danny Ainge and others on a street in East Hampton (the Photo) had been uploaded to Mr. Goldman's Snapchat story. The Photo then went viral, passing through several social media platforms, including Twitter. The defendants allegedly prominently featured the Photo by embedding it in a Tweet on their respective websites in connection with stories being published about whether the Boston Celtics were using Tom Brady to help recruit NBA star Kevin Durant.

None of the defendants' websites had copied or saved the Photo on their own servers. The Photo only had been visible in the articles through a technical process known as embedding, i.e., the web developer intentionally added a specific code in the website's HTML code that would instruct the incorporation of an image hosted on a third-party server. The website would appear to display the image through a seamlessly integrated webpage without the user having to click on a hyperlink to visit another page to view the Photo.

The defendants, in moving for partial summary judgment, urged the Court to define the scope of the "display right" in terms of the Server Test advanced by the Ninth Circuit in Perfect 10. Judge Forrest, however, rejected the Server Test as the correct application of the law with regard to the facts in Goldman and further expressed skepticism that the court in Perfect 10 correctly interpreted the display right of the Copyright Act.

Judge Forrest surveyed the decisions in the circuit courts outside the Ninth Circuit and found that the case law in this area is scattered and far from settled. She then examined the Copyright Act and its legislative history. The Court noted that under the definitions in section 101 of the Copyright Act, to display a work publicly means "to transmit ... a ... display of the work ...by means of any device or process." The Court further explained that "to transmit a display is to 'communicate it by any device or process whereby images or sounds are received beyond the place from where they are sent.'"

Finding that the statute was plainly drafted with the intent to include the circumstances here, the Court noted that "devices and processes are further defined to mean ones 'now known or later developed.'" Since the defendants' websites actively took steps to "display" the image (by coding the website to call up the image), the Court found that the defendants employed a "process" to display the work.

Judge Forrest also surveyed the legislative history, finding that the Copyright Act's authors intended to include "each and every method by which images ... comprising a ... display are picked up and conveyed," and that an infringement of the display right could occur "if the image were transmitted by any method (...for example, by a computer system) from one place to members of the public elsewhere." The Court also noted that the Register of Copyrights warned that "a basic right of public exhibition" was necessary to the 1976 Amendments because "information storage and retrieval devices ... when linked together by communication satellites or other means ... could eventually provide libraries and individuals throughout the world with access to a single copy of a work by transmission of electronic images."

The Decision

In interpreting the Copyright Act's Transmit Clause, which defines an author's exclusive right to include the right to "transmit or otherwise communicate ... a display of the work ... to the public, by means of any device or process," the Court recognized that Congress intended to define "device or process" to include "one now known or later developed." Thus, Judge Forrest recognized that technology and terminology change could result in questions of copyright law to occasionally be unclear. As an example, she noted that when the Copyright Act was amended in 1976, the words "tweet," "viral" and "embed" had "invoked thoughts of a bird, a disease, and a reporter." Now, of course, they have taken on new meanings, yet the Court cannot be distracted by "new terms or new forms of content," but should instead turn to the guiding principles of copyright law.

Based on a reading of the statute and the legislative history, Judge Forrest determined that "nothing in the text or purpose of the Copyright Act" suggested that physical possession (i.e., storage on a server) is a necessary element to its display for purposes of the Act. Accordingly, the Court determined that the principle underlying the Server Test was flawed.

While the Court disagreed with the impact of Perfect 10, the Court differentiated the facts in Perfect 10 from the Goldman case, insofar as Perfect 10 involved requiring a user to affirmatively act in order to engage a direct connection with the third-party server and in Goldman, no affirmative act is required of the user.


The impact of the Goldman decision could be significant. Today many websites have content fed from other sources through coding techniques designed to aggregate information readily available on the internet without "reinventing the wheel." Defendants in Goldman and the amici that filed briefs in support of the defendants' position argued that to find for the plaintiff would "cause a tremendous chilling effect on the core functionality of the web," and would "radically change linking practices, and thereby transform the Internet as we know it." The Court did not agree that its decision would have such dire consequences, since there were "unresolved strong defenses to liability," and therefore "numerous viable claims should not follow."

While Judge Forrest denied the defendants' defense based on the Server Test, she did not determine liability for the plaintiff on this motion. She noted that in Goldman, there "are genuine questions about whether plaintiff effectively released his image into the public domain when he posted it to his Snapchat account." She also noted that there was a "very serious and strong fair use defense, a defense under the Digital Millennium Copyright Act, and limitations on damages from innocent infringement." As such, the true impact of this decision remains unclear as to Goldman and any future plaintiffs.

Unless resolved prior to an appeal, this decision, if affirmed on appeal, could set up a conflict between the Second and Ninth Circuit Courts that could progress to the Supreme Court to decide whether the Server Test can be relied on by millions of websites that use linking as part of their model, or whether photographers and content providers have a new avenue to seek compensation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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