Is reposting an image on social media copyright infringement?

Is reposting an image on social media copyright infringement?

Copyright law is intended to reward creative people for their hard work.  Copyright law in the United States protects original works of authorship fixed in a tangible medium of expression.  The term author includes creative people like painters, musicians and photographers.  Original works are artistic creations like paintings, music and photographs.  United States copyright law grants several exclusive rights to the creators of new works including, the right to make copies, sell and distribute the copyrighted work.  If someone other than the copyright owner exercises one of the exclusive rights granted by copyright law, the copyright owner can sue for an injunction to stop the infringing activity and to get monetary damages for infringement which has occurred.

Copyright law was adopted a long time before the internet existed.  Courts frequently have a difficult time applying copyright law to activities that occur on the internet because the law did not foresee many of the activities which occur regularly on the internet.  Social media makes it trivial for people to upload and publish the pictures that they take.   Other people see the picture and republish it to their friends.  Truly popular pictures get reported on by traditional news organizations like magazines and newspapers.  All of this activity can occur in the blink of an eye, and might be copyright infringement.

Take for instance the case of JUSTIN GOLDMAN v. BREITBART ET AL, 17-cv-3144 (S.D.N.Y. 2018).  Mr. Goldman is a photographer.  Mr. Goldman took a picture and posted it on his social media account.  The picture was of Tom Brady, a popular quarterback for the new England Patriots.  The picture was reposted by other social media users and became so popular that various news organizations published links to the picture.  Mr. Goldman sued the news organizations claiming that the links to the picture constituted copyright infringement.

The news organizations filed a motion for summary judgment in their favor based on prior case law.  The news organizations relied on PERFECT 10, INC. v. GOOGLE INC. 508 F.3d 1146 (9th Cir. 2007).  In that case Google was found to not infringe on Perfect 10’s copyright because Google merely linked to content and did not actually host the content.  This ruling has been referred to as the server test, the server which stores the image is infringing, but a server that merely has a link to an image is not infringing.

In GOLDMAN v. BREITBART, the judge did not find the server test applicable and denied the motion for summary judgment in favor of the defendants.  The judge reasoned that there is nothing in the text or the legislative history of the Copyright Act to justify the server test. Congress intended to protect copyrights regardless of unanticipated technological developments. And the U.S. Supreme Court’s ruling in 2014’s American Broadcasting Companies v. Aereo stands for the premise that copyright liability “should not hinge on invisible, technical processes imperceptible to the viewer.”  The judge then went on to say that this does not invalidate other defenses to copyright infringement the defendants may have, they are just not entitled to a summary judgment in their favor based on the server test.

The case is still proceeding, the defendants have not lost the case, just this motion.

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