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Appeals Court Won't Take Up Copyright Decision That Raised Alarm About Embedding, Linking (hollywoodreporter.com)
The 2nd Circuit denies an immediate appeal in a case that challenges how news organizations used embedded photos of Tom Brady. The Hollywood Reporter: Back in February, a New York judge caused a bit of a freakout by issuing a copyright decision regarding the embedding of a copyrighted photo of NFL superstar Tom Brady. Now comes another surprise with potentially big ramifications to the future of embedding and in-line linking: The 2nd Circuit Court of Appeals has denied an interlocutory appeal. Justin Goldman is the plaintiff in the lawsuit after finding the photo of the New England Patriots quarterback he shot and uploaded to Snapchat go viral. Many news organizations embedded social media posts that took Goldman's photo in stories about whether the Boston Celtics would recruit NBA star Kevin Durant with Brady's assistance. Breitbart, Heavy, Time, Yahoo, Vox Media, Gannett Company, Herald Media, Boston Globe Media Partners and New England Sports Network were defendants in the lawsuit, but many of these companies have since settled.
Heavy has not, and in February, U.S. District Court Judge Katherine Forrest shocked many legal observers with a decision that refused to apply the "Server Test," where the direct liability of a website publisher for copyright infringement turns on whether the image is hosted on the publisher's own server or is embedded or linked from a third-party server. Although the Server Test has been adopted in other jurisdictions, Forrest wrote, "The plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have 'displayed' a work within the meaning of the Copyright Act." She added, "Nowhere does the Copyright Act suggest that possession of an image is necessary in order to display it. Indeed, the purpose and language of the Act support the opposite view."
Heavy has not, and in February, U.S. District Court Judge Katherine Forrest shocked many legal observers with a decision that refused to apply the "Server Test," where the direct liability of a website publisher for copyright infringement turns on whether the image is hosted on the publisher's own server or is embedded or linked from a third-party server. Although the Server Test has been adopted in other jurisdictions, Forrest wrote, "The plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have 'displayed' a work within the meaning of the Copyright Act." She added, "Nowhere does the Copyright Act suggest that possession of an image is necessary in order to display it. Indeed, the purpose and language of the Act support the opposite view."
Can someone summarize this for people like me who aren't too bright? Car analogy would be helpful too.
would be if the congress would take the time to understand the issue and bass and amendment to the copy rite act that would address many of these digital concerns so that judges who aren't competent could stop guessing.
Of course it would be pretty cool if someone would mass market a flying car that you didn't need a piolets license for and cost less the $20K ;)
Lots of thing would be pretty cool i guess
âoeTolerance applies only to persons, but never to truth. Intolerance applies only to truth, but never to persons.
Actually seems reasonable, as far as it goes.
I don't think you'd get away with displaying even stock photography that you hadn't got permission for, just by linking to an instance of it on someone else's website. Try arguing that with Getty ...
Whether that should be the law is open to debate, but it sounds like a reasonable application of existing law.
Because you're not in possession of the copyrighted image, but your mirror (the physical kind, not the server kind) is reflecting its image. Therefore, in the court's opinion it's a copyright violation. Brilliant reasoning.
displaying Tom's likeness, from both Tom and the NFL before posting it on snappychat? The logos on that shirt are under copyright as well. Slippery slopes and all that good stuff.
So don't into cars with strangers. Makes more sense now. Thanks.
No. This has no ramifications whatsoever to the future of embedding and in-line linking. "Interlocutory appeals" are appeals that are taken while the case is still in the middle of being litigated in the trial court. Interlocutory appeals are an extremely rare exception to the concept that a trial court is to hear the entire matter and issue a final writted decision, and then the completed trial decision is to be appealed.
Look at the link. Does the appealed order "resolve an issue completely separate from the merits of the action"? The copyright infringement claim was the heart of the action. Is the order "effectively unreviewable on appeal from a final judgment"? No, an appeal from a final judgment of copyright infringement would squarely involve liability for embedding or in-line linking.
This was a purely procedural decision that the appeal was brought too early, and the appellate court wasn't having it.
Finish the trial, then come back. "I really really think that the ruling was wrong" is not a basis for interlocutory appeal.
The logos are trademarks, not copyrighted.
The photographer may not use those trademarks as the insignia for his football team, which is unrelated to the Patriots.
As an example, the Mozzilla foundation can name their email software Thunderbird. Chevy can't name a sedan Thunderbird, because that would infringe on Ford's trademark using Thunderbird to brand a car. I can also write about a Ford Thunderbird, or photograph one.
As to Brady's likeness, you can't use it without permission for an _exploitive_purpose_. You'd need his permission to put his face on a football and sell it, where the photo implies that Brady endorses your brand of (under inflated?) football. You CAN use a pic of Brady in a news story about Brady or the Patriots. There is a lot of gray area there and state laws vary.
Now where have I heard that name before? Oh yeah, that other awful ruling where she decided uncharged, unproven conduct tainted by corruption could turn a 20-year sentence into life without parole. Not at all surprised she'd ignore standards to push her views again.
Comment removed based on user account deletion
In the car analogy, the car was borrowed with permission. Isn't that how the photo got onto Twitter in the first place?
"Believe me!" -- Donald Trump
Sorry, it turns out your guess is wrong. There are several tests that must be met in order for an image to be copyright eligible. One of those tests is the threshold of originality.
If you draw a typical stick figure, you can't copyright it because it'll look pretty much like every other stick figure. Production of the the image must require creativity, and must in some way reflect the personality of the artist - if pretty much everyone would draw about in about the same way, it can't be protected. Another is a specific exemption of stylized text. An image which consists solely of cool text cannot be copyrighted in the US. It may be a trademark, or possibly eligible for a design patent, but any image of text is explicitly not eligible for copyright. The wording may be, if the words are sufficient to sufficient to comprise a significant creative work. That's separate issue.
For logos specifically, the logos of Best Western, Skyy vodka, and Sony have all been held not coyprightable.
See
House Report No. 94-1476
https://web.archive.org/web/20...
Ets-Hokin v. Skyy Spirits Inc.
What does this even mean? What's a "nothingburger"? Is that some stupid social media word?
I don't respond to AC's.
Your material / image for display and linking. That's what the public world wide web IS.
If you hadn't wanted and those things to happen, you would not have posted your stuff where it is accessible and viewable and linkable and searchable on the public WWW.
Copyright law, in my vague understanding, requires that the copyright holder take reasonable steps to enforce their copyright.
Placing your image in public view in a public square is clearly indicating your intention to allow viewing of and referral to the location of your image.
That act (of posting on public site) is essentially the opposite of taking reasonable steps to enforce your copyright.
If you try to enforce copyright after the fact, after you have already implicitly licensed your image for public viewing and for being referenced by publicly accessible URL, that is closing the door after opening it to let the horses out. That is disingenuous, self-contradictory, and should not be legally valid.
Where are we going and why are we in a handbasket?
https://www.tate.org.uk/art/im...
Where are we going and why are we in a handbasket?
Someone, with permission, examines a car and makes an identical copy of it, leaving the original car intact for its owner's use. Luckily, they make the copy out of bits, so no extra iron and aluminum mines are needed, and no significant extra pollution is caused.
The copier places the copy at a car show, and allows everyone there to examine the car and make their own copy of it.
Where are we going and why are we in a handbasket?
Displaying a linked image in your web page is a pretty far fetched definition of "performing" the image.
If anything is performing, it's the web server and web client software and client computer.
Where are we going and why are we in a handbasket?
If it is copyright eligible it has copyright automatically when created.
Congratulations for missing the point, and arguing a pedantic hair-splitting detail that was omitted merely because it is not relevant to the analysis.
In general, when something is usually true, and also true in the specific case, and it is stated in an overly-broad way, it doesn't really cry out for correction, especially when you're dishonestly claiming it is "wrong." And that it was a "guess." No, it was the accurate truth in 7 words, that corrected nonsense that implied that trademarks do not automatically receive copyright; except that, the vast majority of trademarks were in fact copyrighted at their moment of inception! Long before they were registered as trademarks, in fact, leaving the trademark designation to be entirely irrelevant and misleading.
Are you being intentionally misleading, or do you just not understand where copyright comes from in the US? Do you even know what you linked to? Did you know that it says right in it that everybody involved in that matter agrees that use as a trademark is irrelevant to copyrightability?
Did you even consider basic philosophical identity, and that when I said "Any image creates is copyrighted on creation" that only includes images that were created? And the images you're claiming don't receive copyright are only ones that are so unoriginal, nothing was created. Your own silly hair-splitting should prove you wrong, if you bothered to split the hairs you purport to split.
I'm sure you know the difference between stupid and ignorant, or uniformed. A stupid person can't learn, an uninformed person hasn't learned yet. A smart person is someone who can learn new things.
A smart person, when it's pointed out that team logos:
https://goo.gl/images/7JBrwu
And the NFL logo:
https://goo.gl/images/YSS5fB
can be and are used without copyright permission (in a way that doesn't infringe on their trademark), when they're given a link to the law and to example cases, can learn something new. "Ah that's interesting, they can't be copyrighted, eh? Learn something new everyday", they might say.
A stupid person is one would is incapable of learning.
Particularly sad is when one is incapable by choice, because they refuse to learn, thinking that they can "look smart" by denying the facts presented to them. Of course, they don't actually look smart, they demonstrate the worst kind of stupid - intentional ignorance. They would have shown intelligence by saying "oh that's interesting, thanks".
Not really. It's more akin to telling people living by a large stadium to open their windows on Wednesday night to listen to a Muse concert.
Someone with an IQ of 60 can learn to tie their shoes.
Someone we never went to even elementary school can see things and learn something new, even accidentally.
You've provided yourself with a guarantee, though. You've discovered the fool-proof way to everlasting ignorance - simple refusal to learn. "I won't click on a link to law! If I read the law I might learn what it says!", says Aighearach.
At least your way is predictable - proof against all information, ensuring everlasting ignorance, by refusal to see information which could contradict your first guess.
Whoa there. I really don't think so. I think their page/article would have pretty much worked just as well, with any other photo. It was a photo-agnostic article. (Ok, I haven't actually read the article so I'm talking out my ass, but nearly every other web page that has a photo on it, is like that! Unless the article is actually about the particulars of the photo, like a critique of the lighting or something?)
I guess the derived work question is what it's going to come down to, though. If it's a derived work (which I think is utterly nutty), then I think you're right.
Is this one of those contributory or vicarious versions of liability? Shit, I always forget about those laws! ;-) I could see how that might stick. The user violates the copyright by creating a derived work of both the article and the photo, but it was done at the article's publisher's suggestion? Hmm.. yeah.
"Believe me!" -- Donald Trump