Photo Cases Test Copyright Law and Embedded Tweets

A New Yorker who settled a copyright lawsuit against several news outlets, including Time Inc., Breitbart News Network, Vox and Yahoo — over a photo he took of star quarterback Tom Brady and Boston Celtics manager Danny Ainge — has struck again. This time he's suing a radio station owner in Florida federal courts.

It's a case that could test the boundaries of an emerging area of copyright law, raising major questions about how media companies incorporate social media posts into online stories.

Plaintiff Justin Goldman uploaded the picture to Snapchat on July 2, 2016, but within hours it went viral, popping up on Reddit, then Twitter. From there, news outlets reported on speculation that Brady was helping recruit basketball player Kevin Durant to the Celtics. But when those news reports included the image via tweets embedded within online stories, Goldman sued claiming he'd never publicly released the photo or given the outlets permission to use it.

Goldman's latest complaints against Cox Radio Inc. — which owns hits973.com, hot105fm.com and other websites — are a handful of lawsuits across Florida (e.g., Goldman v. Cox Radio Inc., 0:2019cv62678 (S.D. Fla.)), that accuse the company and its affiliates of copyright infringement.

New York City attorney Kenneth Norwick, of Norwick & Schad, has teamed with Coral Gables, FL, attorney Joshua Spector for the Florida litigations, which include cases in the Middle and Southern federal district courts. "This is part of a series of lawsuits responding to the fact that a number of Cox-owned or -controlled websites infringed on Mr. Goldman's copyright in a famous photograph," Norwick said.

It's possible, according to Norwick, that the Florida cases could eventually move to New York, where he obtained what many considered a surprising judgment for plaintiff Goldman. Before the New York case was disposed, it raised eyebrows when U.S. District Judge Katherine Forrest of the Southern District of New York found it didn't matter that the defendants had shared the picture via an embedded tweet, as opposed to hosting it on their own website.

"Having carefully considered the embedding issue, this court concludes … that when defendants caused the embedded tweets to appear on their websites, their actions violated plaintiff's exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third part (Twitter) does not shield them from this result," District Judge Forrest found in Goldman v. Breitbart News Network LLC, 302 F. Supp. 3d 585 (2018).

Judge Forrest's ruling, which denied the defendants' motion for summary judgment, conceded that copyright law wasn't exactly designed to address social media embeds in online news stories, noting: "When the Copyright Act was amended in 1976, the words 'tweet,' 'viral' and 'embed' invoked thoughts of a bird, a disease and a reporter."

But, "[i]n this case," the New York district judge wrote, "there are genuine questions about whether plaintiff effectively released his image into the public domain when he posted it to his Snapchat account. Indeed, in many cases there are likely to be factual questions as to licensing and authorization. There is also a very serious and strong fair use defense, a defense under the Digital Millennium Copyright Act, and limitations on damages from innocent infringement."

But judicial reasoning ended with that decision, as the U.S. Court of Appeals for the Second Circuit later declined to review the issue.

Attorney Rachel Elise Fugate of Shullman Fugate in Tampa, FL, who represents Cox Radio, declined to comment on Goldman's lawsuits.

Daniel Lustig, a partner at Pike & Lustig in West Palm Beach, specializes in trademark and copyright infringement. He says the New York ruling will likely send ripples into circuits around the U.S. and could spawn a host of willful-infringement cases. "This is just the start of an expensive wave of litigation, given the age of social media and the constant sharing of information through this form of embedding 'process,'" Lustig said. "The Southern District of Florida and other circuits will certainly see an uptick of cases under the same theory."

Pike & Lustig managing partner Michael Pike said cases like this could bring serious consequences, so attorneys representing online publishers should be paying attention. "Given the fact that the Copyright Act provides the prevailing party with the ability to seek attorneys' fees and costs, lawyers representing defendants involved in these types of cases, especially ones where willful infringement may be shown, must act swiftly to protect their clients from the risk of facing attorney fee awards that could 'break the bank,'" Pike said. "This sophisticated area of litigation … is not for the faint of heart."

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Raychel Lean reports on South Florida litigation for the Daily Business Review, an ALM sibling of Entertainment Law & Finance. She can be reached at [email protected], and on Twitter @raychellean