New litigation regarding an image of an NFL star may threaten use of embedded images and videos by amateurs on the web

There is some new litigation which appears to threaten a sacrosanct principle in the user-generated content world on the Internet:  that generally, embeds of copyrighted videos or photos do not create secondary liability for the web publisher doing the embed, because an embed is essentially just a hyperlink – that is, the legal equivalent to a footnote on a college term paper.

However, recently Justin Goldman, backed by Getty Images, has sued several prominent news websites (Breitbart, Time, and the Boston Globe) for hyperlinking through embed code to an image of New England Patriots pro football quarterback Tom Brady. It’s true that these are substantial news companies, not individual uses (so this is not like “Righthaven”).  Kit Walsh and Karen Gullo ran a legal analysis in Electronic Frontier Foundation Oct. 24, 2017, “What if you had to worry about a lawsuit every time you linked to an image online?”  The article links to EFF’s own amicus brief through a Scribd PDF.  The litigation is filed in the Southern District of New York.

This whole issue had started back in 2000, with some companies trying to stop other sites from deep-linking into them, denying them ad revenue.  Courts quickly established the “English teacher rule” based on the footnote and bibliography analogy. But there was some more litigation, particularly over embeds, around 2006 or 2007.   One of the leading cases was Perfect 10 v. Google (settled in the Ninth Circuit in San Francisco).

The amicus brief gets into some ancillary issues.  One could be contributory infringement. Possibly, a website that embeds material it knows is infringing and, behind the scenes, encourages the original infringement, shares the liability.  One would wonder if the plaintiffs are attacking a culture of amateur propagation of infringing material, but then again the defendants are not amateur users. It’s worth noting that in a different area, defamation, there have been a few cases of successful litigation against websites that deliberately linked to defamatory material.

As a practical matter, one could wonder if this case could create problems for YouTube embedding. Normally, when YouTube gets a complaint, under DMCA Safe Harbor it deletes the offending video and all embeds to it simply stop working and give a gray subscreen, but the secondary bloggers are not pursued.  I try to embed only videos that “look” legitimate (like I don’t embed  a free full movie unless I believe the distributor authorized it).  Some publishers, like CNN, tend to attract a lot of pirated videos of their content that quickly disappear from YouTube but don’t put up timely previews or trailers for their own shows on time.  Most motion picture distributors put up their own trailers under their own brands, and these are OK.

The amicus brief notes that liability for using an embedded video for public display like on a Jumbotron in a sports bar might exist under other laws.  The brief also questions why the parties who hosted the actual copyright infringing image were not named as defendants.

The brief also notes that embedding images doesn’t normally create a right of publicity claim for the subject.

As an ancillary matter, it’s worth noting that typically the photographer to takes an image usually owns the copyright, not the subject, unless there is an agreement beforehand.   That’s covered here by “Photoattorney”.  But in some countries the law is different, and it can even be illegal to take someone’s photo without permission in some countries, even France.

If someone takes a photo of a copyrighted image and uploads it into a blog, that could lead to liability (because the blogger stored another copy of the image).  In practice, there are many situations where the blogger knows that the image is in public domain or that the original owner has no real interest in copyright claims, but one should be careful with this.  Likewise, bloggers should be careful about copying actual digital images.  Wikipedia allows this for most commons images along as proper attribution (including CCSA level) is stated.

There was a bill proposed in 2011, S. 978  which could, taken literally, imprison someone for embeds a copyrighted video if 10 people watched it (the “10 strikes law”).   The bill apparently died.

(Posted: Saturday, October 28, 2017 at 1 PM EDT)

U.S. Copyright Office considers European-style implementation of “moral rights”

The United States Copyright Office is seeking comments on a proposal to expand the concept of “moral rights” to creators of content (usually literary works) in the United States, to make these rights follow a pattern more like those in Europe.  The Federal Register explanation is here.

Moral rights typically mean first that authors have the right to expect to receive attribution when their work is used.  For example, Wikipedia normally asks users to attribute authors of photos when using these photos under CCSA licenses.  It even encourages citation of photo authors for public domain items.

The second right is more nebulous.  It presumably “protects” content creators from misuse of their work in such a way as to distort the impression that the author wanted.  For example, some songwriters or composers might not want their music to be mixed or re-adapted for disco-style parodies.  But generally, US law allows this as long as the work is “transformative”.  And the use of “transformation” is becoming more common anyway in the way that some classical music works are commissioned these days.  Jonathan Biss recently commissioned five composers to develop derivate piano concerti from each of the five Beethoven piano concerti.  It was common in the past for pianists to compose their own cadenzas to concerti, and Mozart even allowed pianists to develop the left hand part for most of his 26th piano concerto (the “Coronation”).  Derivative works in the classical world these days often involve collaboration of multiple composers on one work.

But conceivably “moral rights” could be construed as allowing a content creator to allow his work to be reviewed even on certain kinds of politically adversarial websites, on a theory that such commentary misleads the public.

The moral rights controversy reminds me of an attempt, around the year 2000, of some companies to prevent deep links into their sites, as “misleading” or denying them revenue from having to go through a home page with its ads.  But around 2001 courts rules that deep hyperlinks are nothing more than footnotes on a term paper (with “Ibid” and “op cit”).

Kerry Sheehan and Kit Walsh have a detailed article opposing the Copyright Office’s idea on the Electronic Frontier Foundation site, here.

(Posted: Monday, April 3, 2017 at 7:45 PM EST)