Understanding how new copyright law will affect social media embeds for news publishers

Picture this: A photo of two major athletes goes viral, weaving across social platforms, and pops up via embed on popular news sites.

For most, this doesn’t seem noteworthy – mundane, even. That was until the photographer of the photo, Justin Goldman, took prominent media outlets such as Vox, Time, and Yahoo to court over copyright infringement for embedding the tweets on their websites.  

Just two weeks ago, a Second Circuit court in New York found in favor of Goldman, potentially causing a significant shift in how online outlets use third-party media. To get through the technical and legal thicket of this case, Andy Sellars, director of the Technology and Cyberlaw Clinic at the Boston University School of Law, sat down with Storybench to provide some clarity.

Could you talk a bit about what the general consensus regarding embedding was before this case?

To understand this, there’s a few pieces to understand. Copyright provides rights to authors of works, and photographers in this case, certain exclusive rights that they can then hold against other people and license for use. Key to that is that there is both direct and contributory copyright infringement. Direct means I am doing one of these exclusive rights. I am reproducing the work; I am displaying the work. And contributory is someone else is doing it, I’m aware the other person is doing it, and I’m somehow contributing to that person doing it.

Previous to this ruling, and really since the turn of the millennium, the general feeling has been that reproduction of a work on the internet is focused on the actual servers that are hosting the copies of the work. This is the idea of the server test, which comes about mainly from the court of appeals in the Ninth Circuit. What that means for a platform or a publisher is that I focus – for anything I’m hosting on my server – I do my due diligence to make sure that I have the rights. Or I have a defense under copyright law like fair use that I could rely on here. Embedding was actually a nice, low-risk way of using material where you didn’t have to necessarily do the due diligence.

That has changed now with this decision, or at least looks like it might change going forward. Because now the court is breathing new life into the right of display. The right of display sort of sidesteps the server test. It means you’re not just looking at the back end code and thinking ‘Where is this image actually coming from?’ but you’re actually looking at ‘What’s the overall visual impression when the website loads on my screen?’

“Now you can’t just say, ‘Well, server test. That’s Twitter’s problem.’ Now, there’s a potential for risk for the platform itself.”

I would argue that’s going to be to the detriment of websites because one of the benefits of interpreting law this way is that you don’t have to worry about it, so you’re at that much more liberty to try different things and do different projects. Every major journalism outlet these days, when there’s a story involving tweets from people, will embed the tweets. In general, I think that will still be safe. And that’s because if the original author of the tweets or of the pictorial work uploaded in a tweet is in fact a user of the platform. So, Donald Trump for example. Donald Trump tweets. It is Donald [Trump] writing on an account that Donald Trump created with Twitter, and so there’s an agreement there between him and Twitter that says you give us the license to use this material in all the features of the Twitter platform, which includes embeds. As to most content, the author of the work will still be a user of Twitter. You will have a license from them to do this sort of thing. Where things get tricky is of course viral images, memes, things where the person is uploading something that isn’t necessarily something that they created. And now you can’t just say, ‘Well, server test. That’s Twitter’s problem.’ Now, there’s a potential for risk for the platform itself.

So with this new ruling, embedding would be considered direct infringement?

It would be direct and that’s — the biggest difference between direct and contributory is the mental state of the infringer. Under contributory infringement, in order to succeed in a claim, you have to show that the contributory infringer was aware of what was going on. And that can produce a lot of ambiguity and doubt. It is not a fun topic to litigate, let me tell you, but it has a mental state element to it. So your initial defense could be, ‘I had no idea that this Tom Brady photograph was not authorized by this photographer who uploaded it, and once you told me I took it down, so don’t worry about it.’ Whereas direct infringement has no mental state requirement. It is what lawyers call a strict liability tort. And so that means it doesn’t matter that you didn’t know. When it comes to display, especially when you’re talking about a big publication outlet, a lot of people have the power to draw in content from third-party websites. It’s kind of baked into our ideas of website design that you can do that. If this court ruling stays, that’s going to be a tough norm to break.

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You mentioned the Ninth Circuit in California established the server test. Because this case came out of New York, was the court able to decide to sidestep that prior decision?

“It’s kind of baked into our ideas of website design that you can do that. If this court ruling stays, that’s going to be a tough norm to break.”

The question goes to how different circuits determine it. The Ninth Circuit is big. It encompasses pretty much the entire west coast. It technically only has mandatory authority over those states. Because so much technology law happens in California, courts here are pretty deferential to the way the Ninth Circuit thinks about technology law questions. For copyright law, it’s actually that and the Second Circuit. That’s the one with New York City in it, in New York. This case coming up out of the New York courts is actually an interesting thing because it could create what’s known as a circuit split. So say this gets appealed and affirmed in the Second Circuit. Now you’ll have two different courts reaching two different results on this really important question. That would be big. That’s the fastest way to get a case before the Supreme Court.

You mentioned memes are common on Twitter, and a lot of those are borrowed images. Where do those and GIFs fall?

It can be complicated. Usually if you’re thinking about memes and GIFs and stuff, it’s pretty clear that some third party owns that material. You’re typically relying on one of the defenses under copyright law, the big one being fair use. Fair use is a complicated pest, and a little hard to describe. It keeps scholars endlessly busy as they think about it. But the general idea that’s dominating a lot of the analyses of fair use these days is this idea of transformativeness. And this idea of whether or not you look at the original work or the context of the work, and then you look at how it’s being used in this new context. Has it really changed? Not so much physically, but in terms of the actual purpose of the use.

I don’t know if you’re familiar with the TV show Community. There’s this really famous GIF of Donald Glover’s character walking into a room and everything’s on fire and he freaks out. And it’s used for a lot of reaction to when things go terribly. And of course in the context of Community  that was part of a larger story from — I think — a pretty good episode, and it has this more narrative piece to it. Whereas here, it’s just meant to convey the particular emotion. And so that is a situation where there’s a pretty good argument to say that the purpose has transformed between the original use and this reaction GIF sort of use.

A closer call, I would say, would be a fairly popular notion which is sort of goal GIFs. This is really popular in soccer. Where, rather than watching an entire 90 minute soccer game, I might just look at the GIFs of the key plays and goals. In that particular context, I am using it more or less for the same purpose the original telecast was used for, which was to depict what happened in the actual game. It’s almost like an abbreviated form, like a summary version. It’s harder to say that that’s transformative. That’s not the only thing you would consider in a case like that, but it’s a closer call I’d say.

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What about celebrity photos, since some will post photos of themselves that they didn’t take? Is there a difference between an event or photoshoot photo versus a paparazzi shot?

The tricky thing with celebrity photos is you actually have two sets of rights you’re starting to think about here. One is the copyright, and that follows the photographer. Copyright of a photograph goes to the composition of a photograph. So both the staging and the framing of the photograph as well as the lighting choices and things like that. In a candid setting, it’s largely the photographer because they’re the one who’s basically determining where to point the camera. But in other settings, in a staged photoshoot for example, there actually may be a couple authors laying claim to it. Maybe one person is focused on lighting, maybe one person is focused on posing the person, maybe another person is framing the shot. 

Celebrities, and everyone, but celebrities especially have this idea of right of publicity. It’s basically the question of who gets the right to exploit one’s image. So any time I’m using a photograph of a celebrity, there are two steps of analysis I’m doing. One, who took the photograph? Do I have the right to use this photograph? Two, is my use suggesting some sort of commercial affiliation or endorsement from the celebrity? And if so, I could have a problem under right of publicity. Journalists typically have a newsworthiness to this. They’d say, I’m not using this to promote Kylie Jenner, I’m just using Kylie Jenner because the story’s about Kylie Jenner.  I don’t think that in the right of publicity world you have this server test sort of idea. I’m not aware of ever seeing that. I think you would look at the overall visual impression of a website in that case, but that’s not as much of a risk because it’s only a narrow class of uses that would actually trigger that right. Whereas copyright, any use triggers copyright law.

What are the next steps in this case?

Hard to say for sure of course. This was a denial of a motion for summary judgement. What that means is that we are still early in the case. Summary judgement is basically used when you have basically got all the facts you need to know, and you make a motion to basically say, ‘You don’t even have to have a trial, none of the key facts are in dispute. We win as a matter of law.’ And sometimes you’ll have what is called cross-motion for summary judgement, where both sides say, ‘Your Honor, we completely agree on the facts of this case. We just want you to decide, as a matter of law, who’s responsible here.’  And so that’s where we’re at. The court denied summary judgement . I think they’re proceeding to further discovery, and then they have a status conference scheduled in April. So we’ll know then as to whether or not they’re going to seek what’s called an interlocutory appeal, which is to say pause this case, we need to settle this legal issue before we let this case proceed. Generally, courts don’t grant that. They will in circumstances when it feels like it’s so material to the case and such an important situation for the appellate court to weigh in. Or otherwise it may just go all the way to a judgement, which could be a long time from now. It could be a year from now before they even appeal. It could be a long time; it could be very quick. It’s hard to know for sure.   

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