Recent Rulings on 'Embedding' Foreshadow Circuit Split: What Does That Mean For Content Use Now?

In Nicklen, a wildlife photographer and videographer posted original footage of a starving polar bear to his Instagram and Facebook accounts, highlighting the impact of global warming. The video went viral. Defendants, a news outlet and publishing group, posted the video in full on their websites. In posting the video, they did not copy the video and stream it from their servers. Instead, defendants posted Hyper Test Markup Language (HTML) that directed web browsers to retrieve the video from the social media servers for viewing on the defendants' websites. This is known as "embedding." It links to the original post without storing the work on a server or creating a copy of it. The video of the polar bear appeared within the body of the defendants' article even when a reader took no action to retrieve the video or navigate to Nicklen's social media accounts, and even when a reader did not have a Facebook or Instagram account. Nicklen brought suit claiming that this violated his exclusive reproduction, distribution and display rights under the Copyright Act.

The Server Test

First, let's look at the world before Nicklen. Way back in 2007 — iPhones had just hit the market and YouTube was two years old — the Ninth Circuit established what is known as the "server test" for determining whether embedding violated the Copyright Act's exclusive "display" right.