This Court’s decision is interesting for two reasons. First, it seems to contradict a decision about which we wrote here that suggested that the use of an embedded photo was not enough to defeat a claim of liability where the embedded photo was posted on a site to appear to the public to be part of that site. That other decision focused more on how content appeared to the end-user than it did on the issue of a sublicense as does this case. Even so, it is likely that there will need to be more litigation and some higher court decisions before there is any final resolution of just how safe it is to embed content from a social media site on your website without permission of the creator of that content.
The other interesting aspect of this case is that it highlights the broad grant of rights that any content creator gives to a social media site on which they post their content. In my presentations on social media legal issues for broadcasters (see, for instance, my presentation here), I highlight that issue. By posting content to one of these social media sites, the site’s operator generally has the right to repurpose your content for virtually anything that they want – including sublicensing it to other websites which could be those of your competitors. Any content producer needs to carefully consider where that content will end up and balance the exposure gained through the distribution offered by the social media platform versus the possible dilution of the value of the producer’s own exploitation of that content.
It will be interesting to watch as this case makes its way through the courts – or as subsequent decisions tackling the same issue are litigated. For now, what it says is proceed with caution, as the Internet rules of the road are still being written.