NY Federal Judge Rules Instagram, Twitter Embeds Are Copyright-Protected Material

Apparently, it is now not ‘legal’ to put Twitter and Instagram embeds in blog posts.  This is a ruling by New York Federal Judge Katherine Forrest.  Let’s see if her ruling stands, but the fact that she made the ruling at all shows how unstable and uncertain the Judicial system in America actually is if a sitting judge can somehow determine that using a public embed from an Instagram post or Twitter Tweet is copyright-protected material.

Federal judge rules that embedded tweets can represent copyright infringement

A recent ruling by a New York federal judge could have significant implications for how copyright laws are enforced.

The ruling was made in a case where Justin Goldman accused publications including Breitbart, Time, Yahoo, Vox Media and the Boston Globe of violating his copyright by embedding into their stories tweets with his photo of New England Patriots quarterback Tom Brady. Goldman had posted the photo to Snapchat, but it went viral and other users subsequently uploaded it to Twitter.

According to The Hollywood Reporter, the photo in question was a picture of Brady, Boston Celtics general manager Danny Ainge and others, and it was used in stories about whether Brady might help the Celtics recruit 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.

Judge Katherine Forrest argued that the server test has not been applied widely outside the Ninth Circuit. She wrote:

The plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have ‘displayed’ a work within the meaning of the Copyright Act … 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 Act support the opposite view.

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Paul Gordon is the publisher and editor of iState.TV. He has published and edited newspapers, poetry magazines and online weekly magazines. He is the director of Social Cognito, an SEO/Web Marketing Company. You can reach Paul at pg@istate.tv