Settlement In Tom Brady Photo Case Leaves Issue Of Copyright On Embedded Images Unsettled

A little over a year ago, we wrote about a pretty bad ruling in NY, by Judge Katherine Forrest, arguing that merely embedding content on a site -- even though it's hosted elsewhere -- could be deemed infringing. This went against what has been known as the "server test," which says that the issue is where the content is actually hosted (which server it's actually on), and that merely embedding the image shouldn't lead to new claims of infringement. Considering that, technically, embedding an image is no different than linking to an image, saying that embedding an image that is hosted elsewhere is itself infringing could put much of the basic concept of how the internet works at risk.

This particular case involved a photo of quarterback Tom Brady that had been posted originally to Snapchat. The image, taken by photographer Justin Goldman, made its way from Snapchat to Reddit to Twitter. Some news organizations embedded tweets showing the photo, using Twitter's native embed functionality. Goldman sued a bunch of them. Judge Forrest, citing the Supreme Court's "looks like a duck" test in the Aereo ruling said that embedding qualifies as displaying a work (even though the websites in question aren't hosting anything other than a pointer telling user's computers to go find that image). Even worse, Forrest explicitly rejected the server test, saying it was wrong.

This was poised to be a pretty big deal... except that it's not. Because the entire lawsuit has been settled leaving the question of whether or not the server test is considered valid (especially in NY where the case was filed) unanswered. While there is the Forrest ruling on the books, since it's in a district court it creates no official precedent that other courts need to follow (though that won't stop it from being cited). However, as the linked article notes, there are some other cases challenging the server test and looking at the legality of embeds still going on, so perhaps we won't have to wait long for the issue to bubble up again. One hopes that, this time, a court will accept the basic server test as the only reasonable interpretation of the law.