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Judge Says Embedding a Tweet May Be Copyright Infringement **Attorney Advertising **

Social media sites such as Twitter and Facebook encourage social sharing.  If there’s an update or post that you resonate with, you’re free to share that message with your friends, fans, or followers.  Now though, a federal court in New York may soon put the brakes on the practice of sharing Twitter updates outside of the platform. Typically, this is done by embedding updates onto third-party websites like this example below.

The problem in this particular case goes back to Tom Brady.  (Yes, really).
A photographer by the name of Justin Goldman took a photo of Tom Brady that he posted on Twitter.  When the image went viral, online publications such as Yahoo!, Boston Globe, and Time then included an embedded image of that particular tweet in their coverage of the story.  Goldman alleged that the news organizations’ use of his photo, even though it was first uploaded on Twitter and free to share on the platform, violated his copyright.
It All Goes Back to the Server Test
In the past, disputes along these lines were decided by the “Server Test,” where liability for infringement was based on whether the image was actually hosted on the publisher’s server or if they were merely linking to content elsewhere that gave proper credit to the image.
Embedding was previously thought to fall under the category of linking to content hosted elsewhere.  Recently, the federal court in New York decided to take a look at the practice from a different angle and instead found:
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.
This is certainly not the final ruling on this matter as the judge simply denied the publisher’s motion to dismiss the case under Summary Judgement.  Online content publishers and bloggers should keep a watchful eye on this case and perhaps refrain from the practice of embedding tweets until the issue is sorted out to avoid future infringement claims.
If you have questions regarding copyright claims or intellectual property rights, we invite you to contact our Intellectual Property attorneys at 888-666-0062 to schedule an initial consultation.
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney.
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