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This post isn't really series, but from time to time, I address any legal changes that may affect the genealogical community. Sometimes a random court decision about a case that seems to have no relevance to genealogical research or anything else becomes a deal changing blockbuster. The latest controversy involves a case from the United States District Court for the Southern District of New York.
Justin Goldman v. Breitbart News Network, LLC, Heavy, Inc., Time, Inc.,Yahoo, Inc., Vox Media, Inc., Gannett Company, Inc., Herald Media, Inc., Boston Globe Media Partners, Inc., and New England Sports Network, Inc., Case 1:17-cv-03144-KBF, S. District of New York, 2018.
Here is the court's own summary of the facts which includes a footnote.
On July 2, 2016, plaintiff Justin Goldman snapped a photograph of Tom Brady (the “Photo”), Danny Ainge, and others on the street in East Hampton. (ECF No. 149, Goldman Declaration (“Goldman Decl.”) ¶ 2.) Shortly thereafter, he uploaded the photograph to his Snapchat Story.1 (Id. ¶ 5.) The Photo then went “viral,” traveling through several levels of social media platforms—and finally onto Twitter, where it was uploaded by several users, including Cassidy Hubbarth (@cassidyhubbarth), Bobby Manning (@RealBobManning), Rob H (@rch111), and Travis Singleton (@SneakerReporter). (Id. ¶ 6–10; ECF No. 120, Defendants’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 (“Defs.’ 56.1 Statement”) ¶ 28.) These uploads onto Twitter are referred to as “Tweets.”The key to understanding this controversy is that the photo was undeniably subject to a claim of copyright and then used by commercially oriented websites without a license or even the courtesy of attribution.
1 Snapchat is a social media platform where users share photographs and messages; a Snapchat story is a series of photos a user posts—each photo is available for twenty-four hours only.
Defendants in this case are online news outlets and blogs who published articles featuring the Photo. Each of defendants’ websites prominently featured the Photo by “embedding” the Tweet into articles they wrote over the course of the next forty-eight hours; the articles were all focused on the issue of whether the Boston Celtics would successfully recruit basketball player Kevin Durant, and if Tom Brady would help to seal the deal.
It is undisputed that plaintiff holds the copyright to the Photo.
The court goes on to examine the process of "embedding" a photo in an HTML document. To make this part of the case as simple as possible, the photo at the beginning of this post is "embedded." All that means is that it is used in the context of this post and copied here by reference to another copy of the same photograph. By the way, the photo above is in the Public Domain and not subject to copyright claims.
Apparently, the defense raised was that no actual "photo" was copied and that the "original" was never used. This is a pretty lame defense from my perspective. I would probably have claimed that the "viral" photo had passed into the public domain by virtue of the fact that the "author," here the photographer failed to take steps to protect his copyright from use by millions of people. He could have watermarked his photo with a claim of ownership, for example.
This case has implications for anyone who copies a copyrighted photo because, at least in this early phase of the litigation, the court did not discuss the issue of abandonment.
The discussion by the Judge is a good summary of the status of U.S. Copyright law as it relates to technology such as the internet. However, many of the statements quoted by the Court demonstrate the lack of sophistication of the various judges who are quoted.
It should also be noted that this lawsuit is far from over. The order referenced above is only a decision on part of the case and the final decision or judgment of the court is still a long way off. After the decision is made, the parties could always appeal to the Court of Appeals and ultimately the U.S. Supreme Court.
If this case is finally decided on the basis of the reasoning set forth by the Court, it will become a landmark decision and a very good reminder to all of us to be extremely careful when copying and using content from the internet.
Sounds to me as if the USA is being dragged into the 20th century.
ReplyDeleteIn many other regions of the world articles, images etc are automatically copyright (there is no requirement to register a copyright).
Public Domain has a precise meaning, not simply on view to the public but rather that the copyright has been specifically waived.
Interesting case, James, because it is deceptively simple and yet embraces many of the most salient points regarding copyright in an electronic world. Yes, the defence of 'photo' versus electronic copy of the original photo is both lame and missing the essence of copyright as it applies to reproduction. However, even if we accept that copyright applies to electronic data then we need to get real: the way that the Internet works means that your "original" electronic image HAS TO BE COPIED. It is not the case that everyone accesses the one copy of the image you posted in your particular social media; there are copies quietly taken and transmitted between servers around the world in order to make things function efficiently. But that must be distinct from copies knowingly made by an individual or organisation. Attribution MUST BE automatic, and the technology is there to achieve it but no one seems interested. As for whether copyright (rather than attribution) should be applicable to material voluntarily posted on social media, I believe that may not be practical. However, as you've pointed out already, many people employ 'copyright' in inappropriate situations, primarily because that's the only route with any legal protection.
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