Last week, a US District Court Judge in the influential Southern District of New York issued an opinion finding that the fact that a picture of New England Patriot quarterback Tom Brady that was displayed on the websites of a number of media defendants was potentially infringing – even though the photo was not copied by the website owners and hosted on their servers. Instead, the photo was “embedded” on the websites and actually came from Twitter where it was hosted on servers maintained by that company. The Judge determined that because the photo automatically showed up on the defendants’ websites when those sites were visited by members of the public and appeared to visitors to be an integrated part of their websites, the mere fact that the photo was not hosted on the servers of the defendants, but instead on the server of Twitter, was not enough to provide a defense to the claim that the defendants had displayed the content without permission of the copyright holder. The right to “display” a copyrighted work is an exclusive right given to the copyright holder under Section 106 of the Copyright Act, meaning that the copyrighted work cannot be displayed without the permission of the copyright holder. As we wrote here, here and here, there have been many cases where photographers have sued broadcasters and other media companies for posting photos on their websites or even on their social media feeds without permission.

It had been widely accepted for the last decade that website owners were safe from copyright liability if they merely embedded content that was served from another site (e.g. social media sites like Twitter or YouTube) as contrasted to actually hosting the content on the website owner’s own server. This feeling of security stemmed from a case last decade where the 9th Circuit Court of Appeals made the distinction between hosting content and merely linking to content on another site. In that case, the Perfect 10 case, the defendant hosted an image search site with thumbnail images of pictures (the thumbnails hosted on the site of the defendant), and when a visitor to the site clicked on the thumbnails, the image was expanded by launching the image on the hosting site. In that case, because the large photos that were displayed when the user clicked on the thumbnails were hosted on the plaintiff’s site, the defendant was not found to be infringing for displaying those larger photos. The Judge in last week’s case found some striking differences in the use of an embedded Twitter photo case that, she said, made clear that there should be no clear safe harbor from liability simply because the image was hosted on a site not owned by the defendants in this case.

Among the differences looked at by the Judge was the user experience and the conduct of the website owner. The Judge looked at the Aereo decision (which we summarized here) to determine that the way in which the user perceived the copyrighted work was important in making infringement decisions. Where the user perceives the use of the copyrighted material in the same way that it would perceive the use of content in other contexts where permission from the copyright owner is required, that permission should also be required in the context of any “new” technology that provides the same functionality.

In this case, the photo at issue in this case appears on a defendant’s website as if it was part of that site, even though the photo was hosted on Twitter. When the user went to the defendant’s site, the material hosted on the defendant’s server and the embedded photo from Twitter would all resolve into a single page, and the sources of the different content could not be perceived by the user to the site. Unlike Perfect 10, where the site visitor had to click on the thumbnail image before the bigger picture would be seen, here there was no need for any action by the site visitor. The image appeared on the webpage as if it was part of that page. Given the fact that the photo was displayed on the webpage, by design of the page’s owner, as if it were part of that page, the Court concluded that the site owner should not be able to claim immunity from having to secure rights to use the photo simply because the photo was not hosted on its server, but was instead hosted on Twitter’s server.

So what does this mean for companies that want to use embedded content on their websites? Most importantly, these companies should proceed with caution. In this case, the photos that were used from Twitter were not posted by the copyright holder himself, so the Court was not in this opinion considering the question of whether there was any implied permission given by the copyright holder merely by posting its content on Twitter (in fact, the court reserved for later consideration the question of whether the copyright holder had lost his protections by circulating the photo widely without limitations). The fact that the photo in issue was not posted by the copyright holder should not give comfort to website owners and lull them into thinking that they can embed content on their sites as long as they don’t post obviously infringing content. When a website owner embeds links to content from a social media site like Twitter or YouTube, they are rarely going to know the source of that content and whether it was posted with all necessary permissions. Was the picture of the beautiful sunset posted on Twitter a photo taken by the person who posed it, or was it taken from some other source?  Was it posted by the copyright holder? Does it contain any elements for which the copyright holder itself did not obtain permission (for instance, the creator of a YouTube video may not have received the permission of copyright holders in the music the creator uses in the video to synch that music to the video – which could raise issues when the content is embedded on a third-party site). A site owner embedding links to that content is rarely going to know the answer to these questions.  So this Court’s decision, if universally adopted, poses risks for any website owner that wants to post embedded content on their sites.

In cases where the content has been posted on the social media site with permission of the copyright holder, one would think that the risk for the website owner embedding that content is less, as long as the site owner is following the terms and conditions imposed by the social media site owner for embedding content. As I described during the course of the video webinar that I did on digital and social media issues for broadcasters (you can find a link to the video here), in most cases, by providing content to a social media site, the copyright holder does not give up all rights to that content, but the copyright owner does give the social media platform the rights to exploit that content however that platform’s owner sees fit – which would seemingly include the right to allow that content to be embedded on sites run by other parties. See, for instance, the terms of service for Twitter, a portion of which states:

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). This license authorizes us to make your Content available to the rest of the world and to let others do the same.(emphasis added)

Even though these terms allow Twitter to authorize others to embed the content posted on Twitter, I would bet that there will be issues about how far that grant of rights goes and whether it allows embedding a photo on a website where only the photo is visible on the website and not the rest of any tweet that accompanied it (even though the terms give Twitter the right to “modify” the content). Reading the Court decision, there were several analogies made to cases involving the “framing” of websites – where one website owner effectively links to the site of another to display that other site’s content – but frames the other site with its own content. Such activities have generally been found to subject the framing site to liability for essentially passing someone else’s content off as their own. You could see similar theories being raised in cases of embedded content from social media sites that is stripped of its context on those sites, and made to appear as it is part of the content of some other party’s sites.

Would such cases succeed? Perhaps not, but we will not know for sure until we see such cases. We will also need to see whether this case from the Southern District of New York is upheld on appeal (assuming that it gets to an appeal, as the judge noted that there were many other defenses to liability that could be raised by the defendants, including fair use, that would be considered later in the case now that she had decided that the case need not be dismissed merely because the infringing content was not hosted on the defendant’s servers). And we will need to see whether or not courts in other districts adopt this line of reasoning, and abandon the bright line that had seemingly been adopted by the Perfect 10 court. In the interim, there is bound to be litigation. Any such litigation imposes costs on the parties – so with the uncertainty that has been introduced by this decision and the potential costs of litigation, proceed carefully when using embedded content on your website.

Note: For those lawyers among our readers, the District Court decision is Justin Goldman v. Breitbart News Network et al, Case 17-cv-3144, Opinion and Order released February 15, 2017.