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Legal Limits to Linking Challenge Social Media
By
Volume 42, Number 3 - May/June 2018

Sensationalist headlines appearing in mid-February 2018 implied that, due to copyright concerns, the end of social media as we know it was near. Here are some samples:

“Embedding a Third Party Tweet Constitutes Copyright Infringement”
(mondaq.com/unitedstates/x/678408/Copyright/Embedding+A+
Third+Party+Tweet+Constitutes+Copyright+Infringement
)

“Alert: Bloggers Beware: New York Federal Court Holds In-Line Linking May Be Copyright Infringement”
(jdsupra.com/legalnews/alert-bloggers-beware-new-york-federal-43185; lexology.com/library/detail.aspx?g=2d51dfae-5aa8-4b0c-a12c-afa0a5c8480f)

“New York Court Rebuffs Ninth Circuit's Copyright ‘Server Test,' Finds Embedded Tweet Displaying Copyrighted Image to Be Infringement”
(newmedialaw.proskauer.com/2018/03/02/new-york-court-rebuffs-ninth-circuits-copyright-server-test-finds-embedded-tweet-displaying-copyrighted-image-to-be-infringement)

The headlines were, as headlines often are, misleading. Designed as an enticement to get people to read the full story, they created fear in those who only read the headline. For those who delved further into the issue, it's clear that linking to copyrighted text and images through Twitter and other social media platforms just got a whole lot more complicated, but should information professionals be scared? Is social media doomed?

IT'S ABOUT A PHOTO

The headlines refer to a recent decision by a federal judge in New York state. Tweets including a photograph of New England Patriot quarterback Tom Brady, which was initially posted to Snapchat, were subsequently embedded in articles in a number of news services' websites. The U.S. District Court for the Southern District of New York held that publishing the photo without permission or a license from the copyright owner was copyright infringement since it violated the copyright owner's display right. If the decision is upheld, it could change the way content is linked to on the internet.

The story that led to this decision is a routine one in the digital age. Justin Goldman happened upon Tom Brady and Danny Ainge, general manager of the Boston Celtics, on the street in East Hampton, N.Y. He took their picture and posted it to Snapchat. The picture went viral and was eventually tweeted and retweeted by many users other than Goldman. At the time, the Boston Celtics were trying to recruit Kevin Durant to join the team, and the meeting between Ainge and Brady was likely related to engaging Brady in that effort. Because of the news interest in the meeting, the tweets containing the photo were published in a number of online articles on the Durant story. (Search ™Tom Brady∫ ™Danny Ainge∫ on Google Images or Bing Images to see the photo.)

Critical to the legal issues raised by the case are the online publications that embedded the photo in their articles. Embedding is similar to linking in that the photo is not uploaded or copied into the article; instead, a particular type of HTML is coded into the article. The browser identifies that code, hyperlinks to the photo, and presents it to the viewer along with the article's text and other content as a complete webpage. At no time is the photo copied or uploaded, but the end user is unable to discern this difference—the photo is simply displayed on the webpage.

When people get a copyright for a creative work such as a photo, they get to control how that work is used in a number of ways, including the right to control the making of copies, the right to control the creation of derivative works, and the right to control publication. For graphic images, the copyright also includes the right to control how those works are displayed. Any person who displays the work must obtain permission, license the work, or be able to identify fair use or another copyright exemption in order to avoid liability.

Goldman sued a number of media companies that ran articles which included his photo, such as Breitbart News, Yahoo, Gannett, and The Boston Globe. He was supported in his suit by a number of photo providers and photography organizations, such as Getty Images, the American Society of Media Photographers, the National Press Photographers Association, and the North American Nature Photography Association. Goldman argued that the Copyright Act is not concerned with where a photo or copyrighted work is stored. It focuses on communication of the image through a process “now known [when the Copyright Act was established in 1976] or later developed.”


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George H. Pike is director of the Barco Law Library and assistant professor of law, University of Pittsburgh.

 

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