By: David Oxenford,
Wilkinson Barker Knauer LLP
Editor’s note: On Thursday, August 19 at 1 p.m., the MAB Third Thursday webinar will feature David Oxenford speaking on “Copyright Issues for Broadcasters.” Register for this webinar here.
We’ve written before over the controversy as to whether embedding pictures or video served by a social media site on your website negates the need to get explicit permission from the copyright owner for that use. For years, many had relied on old court decisions that employed a “server test” – a site was only liable for the use of copyrighted material if that material resided on the same server as the rest of the website content being made available by the site’s owner. But that test seems to be falling by the wayside based on a number of recent cases (see our articles here and here). Another decision was released the week before last by a US District Court Judge that seems to further advance that trend.
In a case brought against Sinclair Broadcast Group, video of a starving polar bear was posted by Sinclair on websites that it controlled without permission of the individual who recorded it. The video was posted as part of an article on the popularity of the video. The videographer sued – and Sinclair responded that it could not have copyright liability as it did not host the video, but instead merely embedded a link to Instagram where the videographer had posted the video. In his decision denying a motion to dismiss, the Judge determined that intentionally embedding the code that brought up that video whenever a website visitor visited a Sinclair site was a “display” of the video by Sinclair and the functional equivalent of hosting the video on Sinclair’s own servers, so the infringement claim could not be dismissed. The Judge did, however, allow Sinclair to continue to argue that, in the context the video was displayed, the use may have been a “fair use.”
The Judge’s decision turned on the language of Section 106(5) of the Copyright Act, which gives copyright owners the exclusive right to “display the copyrighted work publicly.” That includes the right to authorize anyone to display the work – meaning that it cannot be displayed without permission of the owner unless it meets one of the limited exceptions to copyright infringement, such as “fair use.” In a detailed analysis of the right to display a work, District Court Judge Rakoff cited the definition of “display” in the Copyright Act:
“[t]o ‘display’ a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.”
The definition of “show” in the Copyright Act is “to cause or permit to be seen.” Using these definitions, the Judge concluded that the intentional embedding of the video on the Sinclair websites was a display within the meaning of the Act, and therefore needed the permission of the copyright owner. He distinguished the old cases relying on the “server” test as being cases dealing with search engines where the images did not display until a link in the search results were displayed – contrasting that to the concept of embedded photos or videos, where the display occurs as soon as a viewer looks at the website and is indistinguishable to the consumer from other content on the website. The intent of the website owner is to “show” the work to website visitors.
This case is one more chink in the armor that had been provided to websites when they merely embedded copyrighted content on their sites. The recent trend seems to be away from the “server rule” toward a more viewer-oriented position. If the viewer thinks that the content is part of the site, permission needs to be obtained. The Judge also pushed back on claims that this decision would undercut the purpose of the Internet by limiting the interlocking links that can be provided to relevant content wherever it may reside. The Judge noted that, if Sinclair had merely posted a link to the video on Instagram rather than embedding that link so that the video came up when a viewer visited the Sinclair site, the issue likely would not have arisen. It was the conscious choice to make that video immediately available to anyone who came to their site that raised the potential infringement.
The Judge did concede that the use of the video in a report on how popular the video was could be considered a fair use – though the final decision on fair use would be determined by the jury. The judge weighed the various factors in a fair use analysis (see our list of the factors in the article here) and found that some weighed in favor of Sinclair (that the video was used for purposes of commentary or criticism) though others weighed against it (that the whole video was used rather than just a clip). But that issue would be left for the trial.
Once again, this case is a warning to website owners to get permission for anything that they are posting to their sites that will be seen by viewers as being part of that site. Embedded photos or videos no longer appear to be exempt from this general rule – be safe rather than facing potential liability.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
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