The Uncertain Legal Future of Embedded Photographs in Tweets

Designers, brands, retailers, news outlets, and many other companies have taken advantage of the advent of social media platforms like Twitter, Instagram, and Facebook as a means of reaching a wide array of consumers. Through the use of embedding and linking, companies frequently re-share photos obtained from other sources. Recently, however, a slew of organizations were subject to legal attack for engaging in this commonplace practice.

In 2016, nine news organizations and blogs were sued over their use of a photo of New England Patriots quarterback, Tom Brady, pictured with Boston Celtics’ General Manager, Danny Ainge, and NBA star, Kevin Durant. Photographer Justin Goldman initially snapped the photo, after which he uploaded it to Snapchat. The photo went viral, with other users uploading it to Twitter. Numerous news outlets published articles on their websites, wherein the photo was included by embedding users’ Tweets. Notwithstanding these news organizations’ use of conventional embedding procedures—i.e., including an embedded code that directs viewers to the original source—Goldman sued, arguing that his copyright ownership of the photo had been violated.

On February 15, 2018, Judge Katherine B. Forrest of the U.S. District Court for the Southern District of New York issued a surprising ruling in Goldman v. Breitbart, denying summary judgment and holding that when the defendant organizations’ posted embedded Tweets on their websites, they violated plaintiff’s exclusive display right. Judge Forrest began her unexpected ruling by acknowledging that when the Copyright Act was amended in 1976, tweets and embedded links were unimaginable. Almost forty years later, applying the Act in a transformed landscape to novel, unanticipated technologies, Judge Forrest took an expansive reading. This interpretation could sound the death knell to many organizations’ and individuals’ traditional use of Twitter and other online networking platforms. Most recently, in May of 2019, Goldman reached a settlement with one of the defendants, Time, Inc., in essence precluding any further appeals in the case. Consequentially, Judge Forrest’s 2018 ruling, and its potential implications, remains good law in New York.

Ultimately, designers, retailers, and all other companies now face an uncertain future, wherein familiar internet practices, such as embedding or linking photos from third party sources into posts, may need to be reconsidered. Now, only time will determine the approach higher courts will take with regard to embedded images and copyright infringement. In prior similar cases, the Ninth Circuit applied the “Server Test,” which imposes liability for publishing copyright materials when the copyrighted image is hosted on the publisher’s own server, but not when it is embedded or linked from a third-party source. While Forrest’s 2018 ruling eschewed the “Server Test,” as new cases are brought in coming years, it will be critical to see whether other Circuits depart from the “Server Test,” adhere to it, or create a different approach for analyzing copyright infringement in the social media context.