By Shakayla E. Lee
Recent court decisions underscore the need to proceed carefully before embedding social media images or videos on websites without explicit permission from the copyright owners.
An image or video is considered “embedded” when it visually appears on a website but the code remains stored on the social media platform where it was uploaded.
Under the so-called “Server Test,” some courts have ruled that a defendant is only liable for copyright infringement if the code for the video or image was actually stored on the defendant’s computer.
But judges in two federal district court cases have recently declined to follow this test.
In one case, Paul Nicklen, a nature photographer, filed a copyright infringement lawsuit against Sinclair Broadcast Group for embedding in a news article a video of a starving polar bear authored and owned by Nicklen. Sinclair used a Facebook / Instagram embed tool without Nicklen’s consent.
Sinclair filed a motion to dismiss, arguing that there was no infringement because embedding a video did not “display” the content within the meaning of the Copyright Act since the video remained on the social media platform’s server, where Nicklen posted it. Sinclair argued that the court should apply the Server Test.
In a July 2021 decision, however, Judge Jed Rakoff of the Southern District of New York denied Sinclair’s motion. He held that embedding a video on a website falls within the copyright owner’s “display” right because, under the Copyright Act, “display” simply means “to show a copy of” a work. Applying the plain meaning of “display,” the judge decided that using the Server Test in this context would be “contrary to the text and legislative history of the Copyright Act.”
Nonetheless, Judge Rakoff distinguished the Sinclair case from situations where copyrighted images are only displayed after a user clicks a link. “An individual still image from the [v]ideo awaits Sinclair readers whether they click the image to play the video or not,” he wrote, explaining why the Server Test was not applicable in this particular case.
(On October 12, 2021, Nicklen and Sinclair dismissed their claims with prejudice, meaning neither party can refile. Therefore, this matter has likely settled out of court.)
“If the viewer thinks that the content is part of the site, permission needs to be obtained,” wrote David Oxenford, an attorney with Wilkinson Barker Knauer LLP and author of the Broadcast Law Blog.
An earlier case from 2018, Goldman v. Breitbart News Network, involved a similar situation. In that case, Justin Goldman captured a photo of Tom Brady and posted it to his Snapchat account. Goldman’s photo went viral, and online users shared the image on several other social media platforms, including Twitter. Breitbart News Network and several news outlets then prominently featured the tweets, including Goldman’s photo, on their websites by embedding the tweets within online news articles.
Goldman sued the news outlets for copyright infringement. The defendants argued that embedding the tweet did not violate Goldman’s display right under the Server Test.
In denying the defendants’ motion for partial summary judgment, Judge Katherine B. Forrest of the Southern District of New York also declined to apply the Server Test, stating that “liability should not hinge on invisible, technical processes imperceptible to the viewer.”
While it’s unclear whether other courts will follow these rulings, media organizations should take great care before embedding images or videos, including consulting with their attorneys.
The PBS Editorial Standards provide the following guidance. “Whenever possible and appropriate, producers should seek permission from the originator of user-generated content for its use.”
Contact Standards & Practices at standards@pbs.org
