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.