What follows is our attempt to explain – in plain English – the facts and possible consequences of a case which has received a tremendous amount of attention in the photo, advertising, social media and publishing communities.  We believe that the interest generated by this well-publicized decision is likely disproportionate to the effects, in any, the decision will have in the real world.

As Adrian Monk loves to say, “Here’s what happened”.

Justin Goldman took a photo of New England Patriot quarterback (and notorious nemesis of Ed’s beloved NY Jets) Tom Brady.  A bevy of news sites including Yahoo, The Boston Globe, Brietbart, Vox Media and others were sued by Mr. Goldman for embedding tweets that contained the photo. None of the defendants had obtained a license from Mr. Goldman to use his photo.

Mr. Goldman had posted the image on Snapchat not Twitter. Other people principally his followers, posted it elsewhere on line and eventually the image appeared on (at least) both Reddit and Twitter. That is when the news organizations “picked it up”. They did not simply scan, appropriate or copy the photo. Rather they embedded some of the already infringing tweets that contained the photo.

Claiming copyright infringement, the case came before Judge Katherine Forrest in the Federal District Court in Manhattan (formally known as The Southern District of NY…FYI, cases heard in Brooklyn and Long Island are in The Eastern District of NY).  The defendants relied on decisions made in the 9th Circuit Federal District Court, which is located in California. Judge Forrest decided to rely on the United States Supreme Court and in effect ignore prior decisions made in California – something she had every right as a judge to do. Now before we continue, understand that this decision does not end the case nor decide all of the issues which may eventually go to trial in front of a judge and jury. Rather the judge is permitting Mr. Goldman’s case to continue on rather than dismissing it.

Many in the news business view the decision as “cataclysmic”.  We don’t agree, but in any event, since the decision of the NY Federal Court is at odds with rulings of the California Federal Court it is conceivable that one day the US Supreme Court will in effect, set a single rule or standard for all Federal Courts to follow and that would result from SCOTUS agreeing to hear an appeal from these defendants and making such a uniform decision.  Such a scenario if it occurs, would likely be years away.

Now back to the case….

In 2014 SCOTUS decided the case of ABC Inc. v. Aero, Inc.  ABC was joined by other networks and pro sports leagues in claiming that Aero was guilty of copyright infringement by allowing its users to view television content of live and time shifted programming while bypassing cable and broadcast channels. ABC won and Aero promptly went out of business.

SCOTUS held in Aero and Judge Forrest relied on the concept in the Goldman case that, the issue of copyright infringement “should not hinge on invisible, technical processes imperceptible to the viewer”.  Judge Forrest believes that such phrase sounds like “embedding” which is after all an invisible, technical process imperceptible to a viewer. (Nor, we hasten to add, do viewers much care if either a copyright holder is getting ripped off and/or they are getting something cheap or free of charge).

So if one were to upload an episode of NCIS without a license, embedding that episode would lead to liability. That liability could apply to anyone who embeds without permission or license. Embedding content legitimately uploaded to say, YouTube would be fine.

Pirate sites rather than host content directly usually embed it with a foreign player involved in the process so as to avoid liability. The Goldman case raises the specter of possible copyright infringement resulting from the unlicensed unauthorized embedding of content.

“When defendants caused the embedded tweets to appear on their websites, their actions violated  (Goldman’s) exclusive display right,” wrote the judge.  The “exclusive display right” is but one of a copyright holder’s bundle of rights. The decision does not as yet change the law and the defendants may yet prevail at trial using other defenses. If the parties settle before trial, the impact of the decision going forward is/will be difficult to assess until/unless other judges and/or SCOTUS adopts or rejects Judge Forrest’s view.

Meanwhile social media companies and news organizations are near hysterics at the chance of being held liable for copyright infringement as a result of embedding tweets. We note with considerable interest that according to the court papers, photographer Goldman never wanted the photo on the Internet. Publishers need only perform some due diligence, ascertain the identity of the creator and obtain permission to embed. Judge Forrest’s decision in our opinion, only chills or deters any person or entity, which simply wants to employ copyrighted material without bothering to pay the creator.

If Judge Forrest’s decision deters a single copyright thief then we are pleased. Her decision in our view is perfectly sensible. No one can predict with accuracy whether the decision will stand the test of time and/or have any impact over the long term.