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NY District Court Adds to Confusion Surrounding Embedding
In the rapidly changing environment surrounding the legal issue of embedding (a type of inline linking that displays images and videos hosted somewhere other than the current publisher's servers), the U.S. District Court for the Eastern District of New York has added another ruling that places the liability associated with such behavior in uncertain waters. On Nov. 2, 2020, the court dismissed plaintiff Michael Barret Boesen's Complaint against United Sports Publications, Ltd. (USP) on the grounds that it failed to allege a claim for which relief could be granted under Rule 12(b)(6). Boesen v. United Sports Publs., Ltd., No. 20-CV-1552 (ARR) (SIL), 2020 U.S. Dist. LEXIS 203682 (E.D.N.Y. Nov. 2, 2020)
Embedding social media has been a commonplace practice for years. Indeed, it is still commonplace to see Instagram and twitter posts embedded throughout other publishers' content. Such a practice seemed safe under the Ninth Circuit's "server test" adopted in Perfect 10, Inc. v. Amazon.com, Inc, 508 F.3d 1146 (9th Cir. 2007). However, in recent years, the notion that embedders may be liable as copyright infringers has resurfaced as courts outside of the Ninth Circuit address the issue. See, e.g., Goldman v. Breitbart News Network LLC, 302 F. Supp. 3d 585, 590 (S.D.N.Y. 2018); Leader's Inst., LLC v. Jackson, No. 3:14-CV-3572-B, 2017 U.S. Dist. LEXIS 19355, 29-30 (N.D. Tex. Nov. 22, 2017); McGucken v. Newsweek LLC, No. 19 Civ. 9617 (KPF), 2020 U.S. Dist. LEXIS 96126 (S.D.N.Y. Jun. 1, 2020).
On Dec. 6, 2019, world-renowned tennis player Caroline Wozniacki announced her retirement from the sport on her Instagram page. The post included a low-resolution version of a photograph taken by Boesen in 2002 depicting a young Wozniacki about to serve. That same day, USP ran an article embedding Wozniacki's original Instagram post featuring a cropped version of Boesen's photograph. USP embedded the post without a license or permission from Boesen. After Boesen filed an amended complaint for copyright infringement, USP moved to dismiss under Rule 12(b)(6). Discussing the merits of Boesen's complaint, the court analyzed whether or not USP's article constituted fair use.
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