Copyright & Digital Images: Is it Wrong to Imbed?

Copyright & Digital Images: Is it Wrong to Imbed?

Krista Sherinian

As a patent lawyer Chicago IL residents can rely on can attest, now that sharing digital images on the web is so easy and the practice of “sharing” on social media so commonplace, a recent District Court ruling on copyright needs to be on the minds of companies. Otherwise they can be held liable, if an employee incorrectly shares a copyrighted image on a computer account connected to the business such as Twitter.

Judge Katherine Forrest declared, “When defendants cause embedded Tweets to appear on their website , their actions violated plaintiff’s exclusive display copyright right.” Judge Forrest noted that the media outlets’ actions were willful. She added, “Nowhere does the Copyright Act suggest that possession of an image is necessary in order to display it.

Indeed the purpose and language of the Copyright Act supports the opposite view.” Past similar court decisions were based on the “Server Test,” namely the idea that where the content is hosted determines whether copyright has been infringed or not. So this legal principle allowed web content makers to find images they wanted to include on their site that had already been posted to social media and easily upload these images.

The photo in question in this suit was a picture of football legend Tom Brady, Boston Celtics general manager Danny Ainge and others, and it was used in stories about whether Brady might help the Celtics recruit basketball star Kevin Durant. The publishers had asked for a summary judgment in this case, based on what’s known as the “server test” — where the liability for copyright infringement is determined by whether an image is hosted on the publisher’s server, or if the publisher just embedded or linked to an image that’s hosted elsewhere. This controversial ruling has already drawn criticism from the Electronic Frontier Foundation, which called the Server Test, “a foundation of the modern Internet.” “We hope that today’s ruling does not stand,” wrote the EFF’s Daniel Nazer. “If it did, it would threaten the ubiquitous practice of in-line linking that benefits millions of Internet users every day.”


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