In a recent case, Nicklen v. Sinclair Broadcast Group, Inc., the United States District Court for the Southern District of New York, rejecting the rationale of a case decided by the United States Court of Appeals for the Ninth Circuit in 2007, denied a defendant’s motion to dismiss a complaint filed by plaintiff who posted a video on Instagram and Facebook only to have defendants embed the video in an online article posted on their websites without having first obtained a license from plaintiff.

The case involved video footage shot by plaintiff, the author and registered owner of a video showing an emaciated polar bear wandering around the Arctic. The plaintiff posted the video to his Instagram and Facebook accounts along with a caption which advised others seeking to use the content commercially to obtain a license to do so. Defendants published an article on their websites about starving polar bears and, using a Facebook and Instagram embedding tool, included the plaintiff’s video in their article without having first obtained a license. Defendants failed to remove the video from their websites after plaintiff sent a takedown notice, leading plaintiff to file a lawsuit which claimed that defendants “infringed his exclusive reproduction, distribution, and display rights” under U.S. copyright law.

In denying the defendants’ motion to dismiss, the court stated, “The fundamental question at issue here is whether embedding a video ‘displays’ the video within the meaning of the Copyright Act of 1976. This Court concludes that it does.” Continuing, the court held, “under the plain meaning of the Copyright Act, a defendant violates the author’s exclusive right to display an audiovisual work publicly when the defendant without authorization causes a copy of the work or individual images of the work to be seen.” The Southern District found that the Copyright Act is “technology neutral” so the court was concerned “not with how a work is shown, but that a work is shown” (emph. in original).

In reaching this decision, the Southern District rejected the Ninth Circuit’s “Server Rule” in Perfect 10, Inc. v. Amazon.com, Inc.  The Server Rule holds that “where the image remains on the third-party’s server and is not fixed in the memory of the infringer’s computer . . . embedding is not display.” The Southern District, however, expressly ruled that the “server rule is contrary to the text and legislative history of the Copyright Act.” The Southern District therefore found that plaintiff had alleged a proper claim that his display rights were violated by defendants. (The court also considered defendants’ “fair use” defense but held the defense’s applicability was “fact-driven” and could not be resolved at the motion to dismiss stage of the action.) In sum, the Southern District found plaintiff had stated a prima facie case for copyright infringement and denied the motion to dismiss.

No interlocutory appeal was filed with the United Second Court of Appeals for the Second Circuit, so it may be quite some time before another appeals court addresses the applicability of the Server Rule to instances where images are taken from one party’s social media accounts without authorization and embedded in another party’s work.

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