How a Viral Snapchat of Tom Brady Shakes Up the World of Copyright

Monica Ruiz

On February 15^th, the Southern District of New York held in Goldman v. Breitbart that embedding copyrighted content does not protect content users from copyright infringement claims. This ruling contrasts with the Ninth Circuit holding in Amazon v. Perfect 10 and the way large publications and personal blogs have operated business.

The facts surrounding this case, not surprisingly, involve a photo that became widely circulated through social media platforms and online news publications. The Plaintiff, Goldman, snapped a photo of Tom Brady in the Hamptons with the Boston Celtics manager. Goldman uploaded this photo to his Snapchat, which was then screenshotted and went viral via Twitter. News outlets picked up on the photo and embedded the Tweets with the screenshotted photo to their websites and broadcasted the hot gossip of day: whether the Celtics would recruit NBA basketball player Kevin Durant and if Tom Brady would help “seal the deal.” The Defendant websites who circulated the photo include Breitbart, Heavy.com, Time Inc., Yahoo.com, Vox Media, Herald Media, Boston Globe Media Partners, and New England Sports Network.

Copyright law serves to protect original works of authorship fixed in any tangible medium of expression, which includes material posted on online. Copyright gives ownership rights to those who produce creative expression. Before Goldman v. Breitbart, the leading case involving embedded copyrighted material was Amazon v. Perfect 10. The Ninth Circuit had previously held in this case that embedding images, videos, or other content does not count as copyright infringement. The analysis centered on the “Server-Test” in which the location of the hosted content determines if there is copyright infringement. Simply put, there is a technical difference between “hosting” and “embedding” online. Hosting content means that the data is stored on servers in your possession or control. Embedding requires inserting computer code that receives the content from a third party host (for example, adding any YouTube video to a website). General Inline linking allows a video or image to display on another server, without indication that it is not actually part of that site. However, before Goldman v. Breitbart, embedding was not likely infringing because no copying is actually involved. Kathleen K. Olson, Social Media and the Law: Chapter 4, Intellectual Property. Under Amazon v. Perfect 10, the embedding content on a second site would not result in infringement as long as the defendant does not attempt to “pass off” content as its own or causes confusion as to source. Id.

The court in Goldman v. Breitbart rejected the “Server-Test” in Amazon v. Perfect 10 and concluded that the “defendant’s caused the embedded tweets to appear on their website [and] their actions violated the display right of the Plaintiff.” The court relied on the plain language of the statute, legislative history, and subsequent Supreme Court jurisprudence in determining that there was no basis for concluding that the physical location or possession of the content determines whether there is copyright infringement, as the court in Amazon v. Perfect 10 found. The court explained that the fact that the image was “hosted on a server owned and operated by a third party (Twitter) does not shield them from the result.” The court focuses on the idea that it did not matter whether the content was copied or embedded because “the difference means nothing to the subscriber…[or] the broadcaster.”

For now, Goldman v. Breitbart is a warning to online publications that they may be held liable for copyright infringement if they embed copyrighted content. However, this could also pose as a dangerous precedent where this contradicts the way that publications have long displayed content and has facilitated the growth of the internet and access to information. News outlets that are tasked with delivering the news may not be able to simply attach a tweet to their stories as a result of this case. However, Goldman v. Breitbart could signal that creators of content warrant more protection so that online websites should not be allowed to circumvent copyright laws by simply embedding content when there is no visual difference to the viewer between embedding and hosting.

While the case is still pending in the court system, online news sites should proceed with caution when embedding copyrighted contented. However, these websites may still link content with other “safer” methods of inline linking that typically do not give rise to IP concerns, such as hyperlinking. They may also appeal to the defenses afforded under copyright, such as such as fair use.