NEW YORK — A New York federal judge has given media companies and other businesses cause to worry a bit more about embedding tweets and other social media posts with photos on their own content, as the judge said political site Breitbart could be held liabe for violating the copyright of a photographer who had originally uploaded a photo of quarterback Tom Brady included by Breitbart with a social media post.

Specifically, Judge Katherine Forrest, in the U.S. District Court for Southern New York, rejected the longstanding “server test” and said embedding links to photos or videos on other sites is considered copyright infringement.

The server test was previously applied by the Ninth and Seventh Circuit U.S. Courts of Appeals, which said there is no copyright infringement if the original content stays on the original server.

In the case of Goldman v. Breitbart, professional photographer Justin Goldman uploaded a photo of Tom Brady to Snapchat. The defendants then embedded tweets of the photo on their website. 

“The image itself was not in the stories or tweets, but only code enabling the image to be displayed when the tweet was opened,” said Cheryl Dancey Balough, an attorney at Balough Law Offices LLC in Chicago. “The issue before the district court in New York was whether the tweets infringed on the image’s copyright because the image was displayed when the tweet was opened. The court found the use infringed and violated Goldman’s copyright.”

Balough said the district court didn’t agree with the appellate court ruling in other circuits, which held that there is only copyright infringement if the content is located on a server not controlled or owned by the copyright owner.

“The district court in the New York case did not agree with this analysis, saying where the image resides is beside the point,” Balough said. “A person opening the tweet sees the image and could care less whether the image comes from the copyright owner-controlled server or another server.”

If the ruling is appealed and the New York-based Second Circuit Court of Appeals agrees with the decision, Balough said there will be a conflict between the circuits and that can lead to an appeal to the U.S. Supreme Court. 

“The district court is located in New York where numerous media outlets are located, so the decision could lead to more infringement cases there,” Balough said.

Balough advises businesses to never transfer an image to their server without the copyright owner’s permission.

“Because of the widespread use of embedding an image using code to point to where the image is actually located and the appellate court cases noted above, I do not see any immediate changes that businesses should make,” Balough said. “However, they should be aware that the law could change if the New York’s district court reasoning is adopted. Right now, the opinion is an outlier.”

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Balough Law Offices, LLC U.S. District Court for the Southern District of New York




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