Dangers of Embedding and Linking Copyrighted Information
By Jaison C. John, Esq.,
Managing Partner, John & Morgan, P.C.
In recent years, individuals, corporations, and other organizations have been increasingly referencing copyrighted images, symbols or writings, on their website or social media publications. In some instances, images may be embedded on a web page, while in other instances, a webpage may merely provide a link to an image. Different Federal Court Districts seem to handle the differences between these usages of copyrighted material in seemingly inconsistent manners. Some Courts take the view that by embedding a copyrighted image without authorization, it may find a person to be infringing another’s intellectual property rights. For example, a Federal District Court in the Southern District of New York (SDNY) ruled that by embedding a copyrighted image without authorization, a defendant may be found to infringe a copyrighted image. (Goldman v. Brietbart News Network, LLC., et. al.). In this case, the Court rejected the so-called “Server Test,” which essentially states that copyright liability may be based on whether or not the copyrighted image is actually stored on the defendant’s server. This case essentially held that regardless of where a copyrighted image is physically stored, embedding that image in a website publication can lead to copyright infringement.
In contrast to embedding copyrighted information, some websites or social media postings may display such information by linking to another web page where the content actually resides. In this case, an image is not stored in the defendant’s servers or accounts, and as such, some Courts feel that there would be no copyright infringement. The Ninth Circuit Court of Appeals’ reading of the U.S. Copyright Act indicates that if the copyrighted information itself doesn’t appear on the defendant’s web page, and is only linking to that image, there would be no copyright infringement. In the case, Perfect 10 v. Google Inc., the Ninth Circuit Court of Appeals applied the Server Test and ruled that Google was liable for copyright infringement because the images at issue were stored independently on servers owned by Google.
Those who post viral content, memes, online communications, etc., primarily rely on the ability to embed, link, or forward web content. These activities have become fundamental to the modern paradigm of communications and entertainment. Some of the disparate rulings by certain Federal District Courts may threaten to impede or attenuate current web and social media activities. Likely, Congress or the Supreme Court would need to step in and provide clarification and uniformity in applying Copyright Laws to website and social media activities. Meanwhile, it would be prudent to check how certain jurisdictions apply U.S. Copyright Laws when displaying content subject to copyrights. Accordingly, those who are contemplating using potentially copyrighted material on their own website or social media postings should consult with an Intellectual Property Law Firm that has experience handling copyright disputes.
If you have questions regarding Copyright, Trademark, or Patent matters, contact the attorneys at the Law Firm of John & Morgan, P.C. Mr. John has over 20 years of experience in litigating and acquiring Patent, Copyright, and Trademark matters for his clients. The Firm’s attorneys and other legal professionals have decades of experience in litigating, prosecuting, and counseling regarding Intellectual Property matters.