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Tom Brady’s Instagram account is a bizarre rabbit hole. His social-media team posts an odd cartoon after every Patriots victory.
It is impossible to describe the fever-dream quality of these cartoons. One features Brady in a scuba suit, a tattooed dolphin selling fidget spinners, and a mustachioed crocodile. Another has Brady and teammate Dont’a Hightower launching a sting operation on a nefarious hot tub store.
I would show you pictures of these cartoons by embedding links to Brady’s Instagram posts into a blog post, but a recent federal court decision involving a picture of the Patriots quarterback has made news outlets wary of doing so due because they fear committing copyright infringement.
This issue could affect your business. Does it ever embed someone else’s Facebook, Twitter, or Instagram post into something it puts online, such as a blog post, press release, or other webpage?
Facebook, Twitter, and Instagram each make embedding easy by providing an embed code for each post, which code you can paste into your webpage.
Before the recent court decision concerning Brady’s picture, many took comfort in the “server test” to protect themselves from copyright-infringement liability.
This test involves the technology for embedding a social-media post into a webpage. When you do so, you don’t make a copy of the embedded post. Instead, you post a code instruction for the browser of the person viewing your webpage to fill in a section with material existing elsewhere on the Internet – drawing from a different server than your website’s server.
So, for example, when you see a tweet embedded in a news article, that tweet is loaded into your browser from Twitter’s servers.
A 2007 ruling by the Ninth Circuit Court of Appeals involving Google essentially held there can be no copyright-infringement liability where there is no copying. Because social-media post embedding isn’t copying, many believed the Google case meant embedding could never be copyright infringement.
The recent ruling involving the photograph of Tom Brady rebuts that belief.
The suit was brought by photographer Justin Goldman. He took a picture of Brady, Boston Celtics General Manager Danny Ainge, and several Celtics players attempting to woo Kevin Durant to the Celtics in the summer of 2016. After Goldman posted the picture on his Snapchat story, the image went viral and ended up in a tweet.
Time, Yahoo, and Breitbart embedded the tweet in online news articles about the courtship of Durant. Goldman sued them for copyright infringement.
The federal judge in charge of the case refused to dismiss it based upon the “server test.” She held that, even if the news organizations didn’t copy the tweet, they publicly displayed it. She held that publicly displaying someone else’s copyright property without permission can be copyright infringement.
News organizations went berserk over the ruling. The judge recognized her ruling is pathbreaking and certified it for immediate appellate consideration.
The judge’s ruling probably will be upheld on appeal. Thus, your business should assume it can’t avoid copyright-infringement liability by embedding. How should it handle this issue?
The Attribution Myth. It’s a myth that giving attribution makes it legal to repost someone else’s social-media post. While attribution is polite, you need either permission or your use must be a fair use.
Good Permission is Hard to Get. What incentive does someone have to give you permission unless you will pay money for the right?
If you don’t get permission, asking could be interpreted as admitting you need permission – that your use isn’t a fair use.
Permission must come from the copyright owner. Authors generally own the copyrights to what they create, but because stuff get passed around the Internet, the person who posted something on social media might not be the author.
Even if you find the author, that person might have given ownership to someone else, such as an employer or whoever commissioned the work.
Images Are Usually the Problem. It’s usually the image in a social-media post that poses the most copyright-infringement risk, not the text.
If this accomplishes your goal, just quote the text to the extent needed but don’t reproduce the image.
Twitter gives you the option to embed a tweet without the attached image, meaning you show only the text and the avatar of the tweeter.
Understand Fair Use. A doctrine called “fair use” allows you to use someone else’s copyright property without permission sometimes.
There are no ironclad rules on when something is a fair use. Fair use often applies in criticism, news reporting, and teaching.
General advice: Don’t use more than you need to make your point. If quoting part of the text will suffice, don’t embed the entire text. If you don’t need to show the image accompanying the text, don’t.
If your point is only “Hey, this is cool!”, that generally doesn’t cut it as a fair use.
Written on April 17, 2018
by John B. Farmer
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