Appellate Courts Pass on Embedded Link, Publicity Rights Cases

In appellate news, the U.S. Court of Appeals for the Second Circuit declined to consider a high-profile copyright case involving embedded links while the California Supreme Court passed on actress Olivia de Havilland’s publicity rights challenge to an FX television show.

In February, a New York federal court judge held that a tweet embedded in news stories may constitute copyright infringement.

Photographer Justin Goldman took a picture of New England Patriots quarterback Tom Brady, Boston Celtics general manager Danny Ainge and others in July 2016 and uploaded the image to his Snapchat account. The picture went viral, moved through multiple social media platforms and made its way to Twitter, where several users uploaded the photo and then tweeted it out with comments.

Online news outlets and blogs then published articles featuring the photo. Each of the sites embedded a tweet into the articles, which discussed whether the Celtics would successfully recruit Kevin Durant and whether Brady was helping with the deal. None of the news sites copied and saved the photo to their own servers.

Goldman then sued the various news sites and blogs, asserting they infringed the copyright he held in the picture. Both sides moved for summary judgment.

Emphasizing that Congress intended that the Copyright Act apply “familiar guiding principles” to “previously uncontemplated technologies,” U.S. District Court Judge Katherine B. Forrest sided with the plaintiff.