A photo of Tom Brady and Celtics president and manager Danny Ainge out for a walk... it's a scene that's quintessentially Boston. Normally, a photograph of two sports personalities having a stroll wouldn't be a cause for much fanfare, but this particular photo may lead to a significant shift in intellectual property law concerning liability for using copyright protected images on social media.
The photo in question was taken by photographer Justin Goldman and posted to his Snapchat account. Rumors of the Celtics attempting to recruit star player Kevin Durant to play in Boston led the photo to go viral. Many believed that Ainge was trying to entice Tom Brady to encourage Durant to make the move to Beantown.
The photo was posted to Twitter and Reddit by different users. Many sportswriters who were writing articles about the meetup embedded tweets from various users who had posted the photo. (When a tweet is embedded on a blog/website, the photo is not downloaded or rehosted. It is simply linked to and loaded by Twitter's servers.)
Upon learning his photograph had been used by several sportswriters, Goldman sued those who had tweeted his photo or embedded any tweets containing his photo alleging that they violated his copyright of the photograph.
The case, Goldman v. Breitbart News Network, LLC et. al., was filed against a number of companies that tweeted or embedded the tweets in their own online content: Breitbart News Network, 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.
In his suit, Goldman claimed he never publicly released or licensed his photograph to the defendants, thus embedding a tweet that contained a copy of his photo violated his intellectual property rights of the image. The theory alleged by Goldman departs from the previous precedent which holds that the entity hosting the infringing content should be liable (in this case, Twitter) and not the party who simply links to it. The court agreed with Goldman in a striking departure from what is commonly referred to as the “server test.”
According to the decision, the party who links to or embeds content could be liable for infringement even if they aren’t directly hosting the image on their site. Although the case will likely be appealed to the Second Circuit Court of Appeals as noted on February 16, 2018, in an article published in Wired, if the decision is upheld and adopted by other courts, “it could change the way online publishing functions.”