Everyone who’s anyone has an Insta account. And how do you discuss an Insta-post without showing the clip? Embedded content has been the subject of litigation for years. But are the goalposts moving?
On July 30th, SDNY District Judge Jed Rakoff rejected the Ninth Circuit’s server test in Nicklen v. Sinclair Broadcast Group, ruling in embedded content litigation against Sinclair and its affiliates that the test is inconsistent with the Copyright Act’s prohibition of merely “displaying” a copyrighted work without authorization. Judge Rakoff aligned with former SDNY District Judge Katherine Forrest, who had rejected the server test 3 years earlier in Goldman v. Breitbart News Network. (You may recall Judge Forrest, now a litigation partner at Cravath, Swain & Moore, from her presentation to the Society last November, “When AI’s Teacher is Big Tech: The Intersection of AI, Antitrust and Copyright”).
Did Judge Rakoff and Judge Forrest give the Second Circuit the ammunition it needs to fire a deadly (or wounding) appellate shot?
Separately, in Huntley v. Instagram, currently pending before Judge Breyer in the NDCA, the social media platform moved to dismiss a putative class action for contributory copyright infringement on the ground that those who merely utilize an embedded link to a photographer’s social media post have not made an infringing “copy”, have therefore not engaged in direct infringement, and hence Instagram cannot be secondarily liable. Plaintiffs have the server test directly in their sights, opposing the motion not only on the narrow ground that the server test does not apply in the context of embedding (only search engines such as Google), but more broadly that the rule is inconsistent with the Copyright Act as technology-neutral and the Supreme Court’s practical approach embodied in the Aereo decision.
Will Judge Breyer set the stage for the Ninth Circuit to reconsider or narrow the scope of its server test? Have plaintiffs have created the initial ripples of what could be waves that finally lead to Supreme Court precedent? Instagram’s motion to dismiss is set for oral argument on October 14th.
Meanwhile, in Sinclair v. Ziff Davis, an SDNY copyright infringement lawsuit concerning social media site Mashable’s embedded use of a photographer’s photo in an article about the plaintiff and other female journalists, defendants asserted a license defense that avoided the copyright infringement server test altogether. District Judge Kimba Woods initially ruled that under Instagram’s terms of use the photographer had granted Instagram both (i) a license to display her photographs and (ii) the right to sublicense the content downstream – and hence Mashable’s use was authorized – but she reversed herself on a motion for reconsideration, holding that there was no evidence in the record showing that a sublicense was apparent from the Instagram terms.
Finally, defendants see a third line of defense in the fair use doctrine. In Boesen v. United Sports Publications, the EDNY district court held that a sports news publisher’s embedding of an Instagram post by professional tennis player Caroline Wozniacki containing a copyrighted photo of Wozniacki taken by plaintiff, in an article about the player’s retirement, was fair use.
Rose Leda Ehler, a partner at Los Angeles’ Munger, Tolles & Olson, will moderate a spirited panel of copyright litigators on the cutting edge of embedded content litigation. Ehler is a rising star in the copyright bar who skyrocketed to the top of her field with her successful representations of multiple major Hollywood studios -- including securing a $62.4 million copyright infringement and circumvention judgment against VidAngel and a preliminary injunction against Redbox on copyright infringement grounds.
James Bartolomei, of counsel at the Duncan Firm, has spent more than a decade representing artists and photographers (among others), including Paul Nicklen, Stephanie Sinclair, Cristina Mittermeier, Ami Vitale, Robert Caplin, Marcus Bleadsdale, Andrea Bruce, and Scott Brauer. Bartolomei has been involved in some recent copyright cases of interest involving social media and embedding, including Sinclair v. Mashable and Nicklen v. Sinclair Broadcasting Group. He is also co-lead counsel in Hunley et al v. Instagram.
James Rosenfeld is a partner in Davis Wright Tremaine’s New York office. He litigates for and counsels digital and traditional media clients on risks and claims relating to their content. Rosenfeld has particular expertise in digital media law, advising clients on issues unique to content providers on the internet, including the DMCA and CDA legal immunities for user-generated content; liability arising from linking, sharing, distributing, embedding, moderating, and aggregating content; and issues relating to online advertising, social media, artificial intelligence, and piracy. Rosenfeld represented Mashable and Ziff Davis in the Sinclair v. Ziff Davis case and has defended other publishers from the Associated Press, the Washington Post and iHeartMedia to Gawker and the Huffington Post against copyright claims.
