Goldman v Breitbart News Network LLC and Others, 15 February 2018, Case No. 17-cv-3144 (KBF)
The plaintiff, Justin Goldman, had taken a candid photograph of a famous sports personality, Tom Brady. He uploaded the photograph to Snapchat, whereafter the photograph went viral on several social media platforms, including several users uploading it to Twitter.
The defendants embedded the tweets, including the photograph, in articles that they wrote over the next 48 hours. None of the defendant websites copied or saved the photograph onto their own servers; rather, the defendant websites embedded the photograph by including the necessary embed code in their HTML instructions. The full-size photograph was visible on the websites without the user having to click on a hyperlink or a thumbnail to view the photograph.
Before the United States District Court (Southern District of New York) (the Court), the plaintiff complained that he had never publicly released or licensed the photograph, and that there had been a violation of his exclusive right to display the photograph in terms of the US Copyright Act. At the outset, the Court noted that in answering questions with previously uncontemplated technologies, courts should not be distracted by new terms or new forms of content, but instead turn to familiar principles of copyright.
The Court divided the litigation into two phases: first, whether the defendants’ actions violated the exclusive right to display a work; and second, to deal with all the remaining issues, including the liability for other defendants and any defences raised. The defendants filed an application for partial summary judgment.
With regard to the question of embedding, the Court concluded that when the defendants embedded the tweets on their websites, their actions violated the plaintiff’s exclusive display right. According to the Court, it was irrelevant that the photograph was hosted on a server owned and operated by Twitter, an unrelated third party.
The Court rejected the defendants’ argument – based on the ‘server test’ – that the physical location and/or possession of an allegedly infringing image determines liability. In the Court’s view, the defendants’ websites actively took steps to display the image, and there was no basis for a rule that allowed the physical location or possession of an image to determine who displayed a work within the meaning of the Copyright Act.
In conclusion, the Court denied the defendants’ motion for partial summary judgment. However, the Court noted that there are genuine questions about whether the plaintiff effectively released his photograph into the public domain when he posted it on Snapchat, whether there had been innocent infringement that would limit the damages, and whether any defences could be raised such as fair use. These issues have yet to be decided by the Court.
The judgment is accessible here.
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