In February of 2018, Federal District Judge Katherine Forrest issued an initial opinion in Goldman v. Breitbart.  The case deals with a photograph of Tom Brady walking with Kevin Durant during a critical recruitment period where the Boston Celtics were attempting to bring Durant onto their team.  Justin Goldman took the original photograph and posted it to his Snapchat story.  The photo went viral, passing through several layers of social media before ending up on numerous Twitter pages without Goldman’s consent.  As news outlets reported the story of Durant’s recruitment on their webpages, many embedded the photograph from the Twitter posts on their websites so that the picture was displayed next to the article when a viewer accessed the page.  Goldman sued several of these news sites, alleging a Copyright Act violation based on his rights to the photograph.

The process of embedding content is completed through the type of code that the website uses to post its content.  The code for a specific website is saved onto a server, which then communicates with other computers attempting to access that website concerning how to arrange the content on the page.  If content is not embedded, a consumer will need to click through another link to view the content on a third-party page.  In contrast, embedded content appears directly on the website’s own page for the viewer to readily view without navigating away from the webpage.  If content is embedded, it does not exist on the website’s server – it is stored on a third-party server, which is then hosted on the website’s page.  The content appears by including an “embed” code in the website’s overall code.

For news media outlets which embed content rather than include hyperlinks to third party websites, the Goldman case may cause problems.  Before Goldman, a website could be held to violate the Copyright Act only where the content at issue was found on the website’s server.  In other words, the website needed to have possession of the content to find a violation.  The Southern District of New York now appears to be taking an expansive view of the Copyright Act’s protections, choosing to find embedded content as an actionable copyright violation where the content’s use was unauthorized.  This means that websites no longer need to own the content they use on their servers before they can face liability for displaying it on their pages.

The concept that ownership is not required for a Copyright violation is not a novel idea – the purpose behind the Copyright Act itself explicitly rejects it.  Most Copyright Act violations occur where an individual reproduces a copyrighted item and displays the item as its own without ever taking physical possession of the original item.  Therefore, the court gave much weight to the fact that the news media websites took steps to “display” the photograph as their own by embedding the content, rather than providing a link to access it.  Had the websites merely referred viewers to a noncomplying webpage on which to view the photograph, they may have been able to shift liability onto the third-party page displaying the content.

Goldman constitutes a major departure in the treatment of embedded media under the Copyright Act.  While it will likely be months, if not years before a final decision is rendered, its preliminary determinations for the Copyright Act’s application should cause news media outlets to think about how their content is delivered online and where it came from.  The question that remains is whether traditional “fair use” principles may apply.  Also, Goldman posted the photo on his Snapchat story – a form of social media accessible by anyone – and therefore potentially waived his action as a copyright violation.  The district court explicitly reserved the potential for waiver as a defense to be litigated on the merits, so news media choosing to embed another’s work may have a defense if the creator chose to post his or her content on an open forum for everyone to access.

The reasoning in Goldman has not been adopted by any other court, and it is too soon to tell if this approach to embedded media will replace the existing treatment of such content under the Copyright Act.  The Second Circuit has not, however, granted an appeal of the opinion, so for cases arising in the interim before a final decision or an eventual appeal, Goldman may be persuasive for courts facing similar issues.  In any case, fair use principles will continue to apply.  Reporters, editors, and publishers must remember to attribute the source of embedded content and seek permission to use such content when necessary.

 

This article was written with contribution from Sarah Rothermel, 3rd year law student at Widener Law Commonwealth.