Copyright and Embedded Images: Okay in California – maybe not so much in New York

Today we venture into the interesting and somewhat perplexing land of copyright law and the internet.

Copyright basics

Most folks understand the basics of copyright law.  The creator of an original work owns the right to it. Others are forbidden from, among other things, copying it and selling it.  Everyone knows you can’t buy the latest Steven King novel, copy it, and sell it to make money. Nor can you make a copy of the latest blockbuster movie or pop music hit and sell it on the street corner.  (Although I have seen folks do that in New York City in days gone by.  Maybe they still do. But they’re not supposed to.) The exclusive right to copy a work is called the right of reproduction in copyright parlance.

There are other rights copyright law also protects.   Specifically, it protects the copyright owner’s exclusive rights not only of reproduction, but also public performance, public display, creation of derivative works from, and distribution of the copyrighted work.  17 U.S.C. § 106. 

Complicating technology

Things complicated pretty fast when you add the internet into the world of copyright.  Which brings us to the internet and embedding.  Analysis of embedding focuses on reproduction and display rights.

It is quite common that folks will have an image or video on their website that comes from a link to an image or video on another website.  In other words, the link sends the viewer to the other website to view it.  The image is not copied onto the first website.  This is called “embedding.” 

Pretty safe to embed

It was generally considered pretty safe to embed after the Ninth Circuit issued a ruling that allowed embedding in Perfect 10 v. 508 F.3d 1146 (9th Cir. 2007).  There, the Court invoked what has become know as the “server rule.”  You can’t copy a copyrighted mage from someone else’s website and display it on your website. But under the server rule, because the image remains on a third-party’s server and is not fixed in the memory of the alleged infringer’s computer, embedding is not a display. Id.

The Ninth Circuit includes California. Because California is home to much of the film industry, music industry, and many online companies, that circuit is quite influential in copyright law.  So, after 2007, folks who linked to another site to display copyrighted images – so the images were never on their server – felt pretty safe. 

Server rule rejected

The Second Circuit includes New York, also home to many creative industries.  Which brings us to Nicklen v Sinclair Broadcast Group, Inc. 20-cv-10300 (S.D.N.Y. July 30, 2021).  There a federal court in New York rejected the server rule. 

The plaintiff, Mr. Nicklen, had taken and posted a movie of a polar bear. The poor bear was starving from the effects of global warming.  Mr. Nicklen urged his social media followers to take steps to mitigate the harms caused by global climate change. 

The defendant, Sinclair Broadcast Group, published an online article about the polar bear movie going viral.  It embedded the polar bear movie in the article.  The video appeared in the article without the reader taking any further action, such as clicking on a link.  Mr. Nicklen sued Sinclair for copyright infringement.

The defendant sought to dismiss the case based on the server rule.  Since it didn’t store the image on its server, it argued, it was home free.  The court disagreed.  It found that no matter what technology was behind how it was done, the defendant had in fact displayed the video on its site.  It noted that the Ninth Circuit’s server rule required that the work be both copied and displayed.  But that would make copyright holders’ display rights simply a subset of their reproduction rights.  It thus rejected the server rule.

Where do things stand now?

So far, we have only a trial court ruling rejecting the server rule.  The Second Circuit could, of course, reverse that on appeal.  But it will be a while before the case is appealed, if it doesn’t settle first, as cases often do. 

Still, an influential trial court refused to follow the Ninth Circuit’s server rule.  So, what was pretty safe in California courts isn’t safe in New York courts. And the rest of the courts don’t have a settled rule on this.  Someday, the Supreme Court may take this issue up and resolve it once and for all.  But right now, it is nowhere near doing this.

The bottom line is this: embed at your own risk. This is especially true if the reader doesn’t have to click a link or take other action to display the image.