What Minnesota Businesses Need to Know About Embedding Images and Copyright Laws

Under U.S. copyright law, original creative works are copyrighted and protected from reproduction, distribution, performance, public display, or derivate use without the express permission of the creator. This may seem simple on the surface, but as is so often the case, technology complicates things. Sure, you know you can’t reproduce someone else’s work and try to pass it off as your own. But, what happens when you find a photo on someone’s Instagram and embed this image on your website? Recently, a few court cases have sparked debate over whether embedding images constitutes copyright infringement. Let’s take a look at where things currently stand.

The “Server Test”

In 2007 the Ninth Circuit adopted the “server test,” which holds that embedding images does not constitute copyright infringement. The Court reasoned that embedded images direct users to the website on which the images are stored, which does not violate the copyright holder’s rights.

In 2018, though, a judge in the Southern District of New York questioned the server test, ruling that embedding a copyrighted image could be infringement. In that case, Goldman v. Breitbart News Network, LLC, a photographer posted a picture of Tom Brady on Snapchat. Other people then shared the image on Twitter, and several news outlets embedded tweets containing the image on their websites. The photographer sued those news outlets for infringement. The defendants argued that under the server test, they couldn’t have been infringing because all they did was embed the image. The judge rejected their argument, holding that under more recent Supreme Court authority, the server test was not good law — essentially holding that whether they copied the underlying code or not, the websites were displaying someone else’s copyrighted work.

That didn’t end the case, though. The judge’s ruling was early in the case, and merely held that the defendants might be liable for infringement; she also noted that the defendants had a number of defenses that might defeat the infringement claim.

The full impact of this ruling isn’t clear. For example, the judge ruled that because Goldman shared his photo using private settings on Snapchat, he never intended to publicly share the image. That leaves open the question of whether a copyright holder who posts an original image on social media could still sue for infringement if the image was then shared via embedding? And the ruling is not binding on any other court because it was issued by a single trial court. Only appellate courts can create binding precedent — and the Goldman case never went to the Second Circuit Court of Appeals because the parties entered a settlement. Still, lawyers looking to weaken or get rid of the server test will be able to cite this decision as persuasive authority.

New Complications to Copyright Laws

The recent case of Sinclair v. Ziff Davis highlights the fact that there are layers to copyright claims in the internet age. . When Mashable, Inc., embedded Sinclair’s original photograph from her public Instagram account in an article highlighting her work, she sued Mashable for copyright infringement. Initially, the complaint was dismissed, but this ruling was reversed a few months later. In both of her rulings, Judge Kimba Wood focused not on the server test, but on contract language — specifically Instagram’s terms of use. The question was whether the photographer gave Instagram the right to sublicense her photograph to other users (like Mashable) by accepting the terms of use and publicly posting her photograph. Initially, the Court dismissed the complaint because Judge Wood read Instagram’s policies as granting it that right to share. On reconsideration though, the Court reexamined Instagram’s terms, found the language was ambiguous and held the case should not yet be dismissed.

The Sinclair case is a reminder that copyright law is not just a matter of statutes. Contracts control the issue of whether a copyright has been transferred. On the internet, the means that those user agreements you probably never read might suddenly become important if you are trying to protect your own works or defend against a claim that you infringed on someone else’s rights.

How a Minneapolis IP Attorney Can Help

As the digital landscape continues to shift and evolve, the courts and laws struggle to keep up. If you have questions about obtaining copyright protection or ensuring that you don’t inadvertently violate someone else’s copyright, get in touch with a knowledgeable copyright law attorney to discuss your concerns.


Questions about copyright law in the Minneapolis or St. Paul area? Call Rubric Legal, LLC today at (612) 465-0074 to get started with a dedicated and friendly IP law attorney.

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