Embedding Tweets with attached photos — a common practice among bloggers, news sites, and other web publishers — may now qualify as copyright infringement. Judge Katherine B. Forrest ruled on February 15 that embedded tweets containing a photo of Tom Brady could have infringed on photographer Justin Goldman’s copyright. A reversal of previous rulings, this could have a wide-ranging impact on web content providers, but could also give professional photographers extra protection over their copyrighted work.
In the case, photographer Goldman accused numerous websites, including Time, Yahoo, Vox Media, the Boston Globe, Gannett, and Breitbart, of copyright infringement by publishing articles in 2016 that linked to a newsworthy photo he had shot of Brady. Although the linkage was circuitous (the photo was originally shared by Goldman on Snapchat and that was retweeted by someone else; that tweet was ultimately embedded by the web sites) the judge sided with Goldman and rejected the news outlets’ defense, holding them liable.
The companies being sued argued that the pages themselves didn’t directly include the photo, they simply asked Twitter to make those images appear. The judge rejected that distinction, narrowly interpreting the so-called “server test”, which says that web publishers could link to full-sized copyrighted images as long as they’re stored on someone else’s server. The “server test” had been the basis upon which many content publishers have relied when posting embedded links.
The “server test” ruling has been in effect for over ten years and embedding tweets and other embedded content has been a standard, accepted practice ever since.
However, according to Judge Forrest’s ruling, there is a distinction between a search engine such as Google, where the user takes an active role in searching for an image and a news site, which is more passive. “Google’s search engine provided a service whereby the user navigated from webpage to webpage, with Google’s assistance,” she wrote. “This is manifestly not the same as opening up a favorite blog or website to find a full color image awaiting the user, whether he or she asked for it, looked for it, clicked on it, or not.”
What does this mean for photographers? You may now have a stronger legal case against online publications that embed your photo without your permission.
However, according to the Electronic Frontier Foundation, which advocates for a freer Internet, an appeal is likely. “We hope that today’s ruling does not stand,” notes the EFF on their website. “If it did, it would threaten the ubiquitous practice of in-line linking that benefits millions of Internet users every day.”
What do you think? Is this a beneficial ruling for photographers? Is it going to cause major changes on how online content providers and news sites use images? Leave a comment!
