Copyright holders have an exclusive right to display images and other works. For the last 10 years, news organizations and other website operators have relied on the Ninth Circuit’s opinion in Perfect 10, Inc. v. Inc., which established a bright-line server test for determining whether a website displayed a copy of an image, and thus potentially infringed upon the owner’s copyright in that image. Under the server test, a website operator displays an image if it sends a copy of the image from its server to the end user’s browser, but does not display an image if it merely embeds instructions (HTML) in its webpage that enable the end user’s browser to request the image from a third party’s server.

On February 15, 2018, in Goldman v. Breitbart News Network, LLC, District Judge Katherine B. Forrest of the Southern District of New York rejected the server test, throwing the door open to new copyright infringement suits in the Second Circuit and beyond. The moving defendants (which did not include Breitbart) had sought summary judgment on the issue whether embedding a link to an image constituted infringement. The court held that the defendants’ websites had displayed an image by embedding instructions in their webpages that enabled browsers to request an image owned by the plaintiff – a photograph of football player Tom Brady and others – from a third-party Twitter account. Under the court’s ruling, the defendants are liable for infringement unless they prevail on their defenses (such as fair use). Even if the district court’s partial liability ruling does not reach the Second Circuit, additional copyright infringement suits based on embedding are certain to follow, eventually leading to further review and possibly a circuit split that could wind up in the U.S. Supreme Court.

Judge Forrest and the Ninth Circuit interpreted the same statutory text, 17 U.S.C. § 101, which provides that to display a work means “to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process.” But they reached opposite conclusions as to whether a defendant that does not possess a copy of the work can nevertheless show a copy of the work and thereby violate the copyright holder’s exclusive right of display. The Ninth Circuit reasoned that the defendant at issue in Perfect 10, Google, did not store copies of the copyrighted images on its servers and thus could not show a copy of the images. Judge Forrest, by contrast, reasoned that the defendants’ websites engaged in a process under the statute when they created webpages with embedded links to third-party images. Judge Forrest also distinguished Perfect 10 insofar as Google’s users clicked on a link to request the third-party image, whereas the news organizations’ webpages included the photograph of Tom Brady as part of their story.

Because embedding links to images is a common practice, the stakes are high for website operators and copyright holders alike, as Getty Images and the Electronic Frontier Foundation warned the district court in dueling amicus briefs in support of plaintiff (Getty) and moving defendants (EFF). Ultimately, the appellate courts – or Congress – will need to resolve this matter of statutory interpretation. Until then, companies that embed third-party content on their websites should be aware of the risk that the Ninth Circuit’s holding in Perfect 10 may not be persuasive in other courts and should take reasonable steps to ensure that embedded content is non-infringing.