Goldman v. Breitbart News Network, LLC - 302 F. Supp. 3d 585 (S.D.N.Y. 2018)

Rule:

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. The definitions in § 101 are illuminating. First, to display a work publicly means to transmit a display of the work by means of any device or process. 17 USC § 101. To transmit a display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent. Devices and processes are further defined to mean ones now known or later developed. This is plainly drafted with the intent to sweep broadly.

Facts:

When the Copyright Act was amended, the words tweet, viral, and embed invoked thoughts of a bird, a disease, and a reporter. Decades later, these same terms have taken on new meanings as the centerpieces of an interconnected world wide web in which images are shared with dizzying speed over the course of any given news day. Today, many websites embed Twitter posts into their own content and for those familiar with digital news or other content, this is common knowledge. Here, plaintiff Justin Goldman copyrighted a photo of Tom Brady that went viral—rapidly moving from his Snapchat account to Reddit and finally onto Twitter. The photo then made its way onto the websites of the defendants, Breitbart News Network LLC, Heavy, Inc., Time, Inc., Yahoo, Inc., Vox Media, Inc., Gannett Company, Inc., Herald Media, Inc., Boston Globe Media Partners, Inc., and New England Sports Network, Inc., who are online news outlets and blogs, that embedded the Tweet alongside articles they wrote about Tom Brady actively helping the Boston Celtics recruit basketball player Kevin Durant. Plaintiff, claiming he never publicly released or licensed his photograph, filed suit against the defendant’s websites, claiming a violation of his exclusive right to display his photo, under § 106(5) of the Copyright Act.

Issue:

Did the defendant violate the plaintiff’s exclusive right to display the photo under the Copyright Act?

Answer:

Yes.

Conclusion:

The court agreed with the plaintiff. The Court concluded that when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff's exclusive display right, and the fact that the image was hosted on a server owned and operated by an unrelated third party, which was Twitter, does not shield them from this result. The Court further explain that 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.  Moreover, the Court held that the Server Test was inapplicable to the case. Since it was neither appropriate to the specific facts of this case, nor, this Court believed, that it was adequately grounded in the text of the Copyright Act.