Revenge of the Tweet

Can republishing a tweet cost your business $150,000?

By Peter Lemire

According to a recent decision from the Southern District of New York, it certainly can. With the ever-present utilization of social media in modern-day online advertising and websites, more and more companies are utilizing information and content which they didn’t necessarily create.

In this particular case, several big-name publications were found liable of copyright infringement after embedding someone else’s copyrighted photo of New England Patriots quarterback Tom Brady onto their own websites.

It is common for company websites to include embedded images or videos that are actually stored somewhere else. While a visitor to the website would see the image or the video, the files for that image or video actually reside on some other computer system not belonging to the company. Sometimes, as in our firm’s video, the website owner is also the content owner of the embedded materials, but that’s not always the case. When the business, or website owner in our example, does not own the content of the embedded materials, the business may be at risk. And, the once trusted defense to copyright infringement that your company was not the party actually hosting the content may not be as strong as previously thought. Business owners need to be extra vigilant when using embedded content.

To properly analyze the risks of using third-party embedded content, we need a brief background of copyright law in order to see how companies are at potential risk for claims of copyright infringement. Copyright law protects original works of creative expression that are fixed in a tangible medium (meaning there needs to be some physical manifestation or representation of the work). Examples include literary works, musical compositions, sound recordings, sculpture, paintings and in the example of the New York case, photographs. Copyright law grants the owner of the copyrights several exclusive rights including the exclusive right to display the copyrighted work. Violating one of these exclusive rights constitutes copyright infringement and can subject the infringer to a wide array of consequences, including a court judgment of up to $150,000 per work infringed for willful infringement, plus the copyright holder’s attorney’s fees.

Contrary to popular belief (much to my continued amazement), just because something appears on the internet, does not mean the copyright holder has allowed the material to enter the public domain and make it available for anyone to use. There are many examples of companies being sued by photographers for posting photos on their websites or social media feeds without the photographer’s permission. We often represent these companies in their defense and the resulting efforts to work out a resolution to the situation.

As previously stated, one of the trusted defenses of the past decade or so has been that the alleged defendant isn’t liable because the allegedly infringing materials don’t originate from a system controlled by the defendant. In this defense, the party which controlled the systems on which the files originate, or the party that caused the materials to be available would be considered the infringer. This instance arose from a case out of the 9th circuit referred to as the Perfect 10 case. In this case, the defendant hosted an image searching site that would crawl the web and return thumbnail images of pictures. And, when a visitor clicked on the thumbnail it would load a full-sized image that was pulled from the plaintiff’s site. The court found that because the defendant’s site pulled the images from the plaintiff’s own site that the plaintiff was actually the one displaying the image and not the defendant. Therefore, the defendant was not liable for copyright infringement.

In the recent case out of New York, the judge drew some important distinctions between Perfect 10 and that case which involved embedded photos of Patriots quarterback Tom Brady. The main difference seems to be the manner in which a user experienced the embedded content. In the case of the Tom Brady pictures, the images were seamlessly integrated into the site, even though they were being pulled from Twitter, so it appeared to the casual observer that the images resided on the site.

Additionally, unlike Perfect 10, the website viewer did not have to engage in any additional action to view the imbedded image; instead, it just automatically loaded the image from Twitter. Lastly, the court pointed out the webpage owner intentionally designed the site to make it appear that the image was an integral part of the website and was not third-party content. For these reasons, the court concluded the defendant should not be able to claim immunity from infringement merely because the photo was hosted on Twitter’s servers as opposed to its own.

Assuming the decision stands (the time for the defendants to appeal has not yet passed as of the writing of this article), and other circuits seem to be poised to adopt the Southern District of New York’s reasoning, what is a business that utilizes embedded third-party content to do?

Companies should be hesitant to embed any content unless it is known that that the source material was posted by the copyright holder themselves. In the case of the Tom Brady photos, the source photograph on Twitter was unauthorized and an infringement itself. If the underlying content is an infringement, it will be difficult to avoid liability. Since it is exceedingly hard to judge whether or not something infringes another’s rights, companies should be exceedingly wary of using any third-party image or video. Furthermore, if a company does choose to embed third-party content onto its website, it should be done in a manner that makes it clear that the website is pulling third-party content and that the company is not providing the source material itself.