EMBEDDING AN IMAGE MAY BE INFRINGEMENT

One of the rights provided under copyright law is the right to public display.  This particular right is important for artists such as photographers and filmmakers as they make a living off of the ability to license their images and films for public display.  The fair use doctrine carved out circumstances under which a third party could use images without violating an artist’s right to public display.  A classic example of fair use would be using an image in a news report about the artist or the image in question.

With the growth of social media, there was a period of time when embedding a picture or video in an online posting was not considered copyright infringement as long as the embedded element directed viewers back to the source of the element.  This stems from a 2007 court ruling that created the “server test”.  Embedding has become so common, most social media platforms contain a tool that allow users to easily embed an image or video into their post.

However, in recent months, several courts have rejected the “server test” as the appropriate test to determine whether embedding an image or video in third-party content constitutes infringement.  The most recent case is Nicklen v. Sinclair Broadcast Group, Inc., decided July 30, 2021.  The judge in this case ruled against the “server rule,” stating that “the server rule is contrary to the text and legislative history of the Copyright Act. . . .”  The idea behind rejecting the server test is that one who owns rights to an image or video does not give up the right of public display simply because their work is online.  

The fair use doctrine will still apply to embedded images and videos.  In the example above, a news outlet will likely still be able to embed something in an online story as long as the embedded item contributes to the story.  But the casual social media user should be aware that courts are pushing back against embedding items in online posts, instead treating them as copyright infringement.  And although not yet an issue, it will be interesting to see whether, if the server test is rejected by more courts, a lawsuit is brought against social media platforms for providing an easy embedding tool and therefore are culpable for contributory infringement under copyright law.