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Everybody these days has a web site. If your business does not have a website, people will question whether you have a business at all. But what you display on your website could lead to problems if you’re not very careful. This post concerns the use of images on your website, and, while the law is unsettled, it’s as treacherous as a minefield. In fact, the terrain is so hazardous that you may even be liable for merely embedding a tweet on your web site.

Information for Trademark Clients

We advise clients regarding how to use their trademarks on their web site so as to comport with trademark law.  The issues discussed below fall under the rubric of copyright law. But these copyright issues affect trademark owners, because websites will often include both trademarks and copyrighted material, or at least materials that may be subject to a claim of copyright.

The case of Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585, 586 (S.D.N.Y. 2018), involved the display of a copyrighted photograph of Tom Brady. The photo at issue was not copied and displayed on the defendants’ web sites, but rather, the defendants, as part of news articles about Tom Brady, had embedded a tweet on their websitesthat resulted in the display of the photograph, which resided on a server owner by Twitter.

As the Court explained, “Embeddingan image on a webpage is the act of a coder intentionally adding a specific embed code to the HTML instructions that incorporates an image, hosted on a third-party server, onto a webpage.”  (internal quotations omitted) Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585, 587 (S.D.N.Y. 2018). In this case, the defendants had embedded the copyrighted photo of Tom Brady, which photo was hosted on server belonging to Twitter, where it had been uploaded by several Twitter users after having originally been uploaded by the copyright owner to his Snapchat story.

None of the defendant websites in the case had copied the photograph at issue, downloaded it from Twitter, or stored it on their own servers. All they had done was embed html code on their sites that caused the photograph to be displayed on the screen of computer users who visited their websites, without the need for said users to click on a hyperlink or a thumbnail to view the photo.The photo was displayed alongside an article about Tom Brady.

The Copyright Act of 1976 gives the copyright owner the exclusive right to display the copyrighted work.The court acknowledged that the law is unsettled and that in the 9th Circuit the test would be different. In that circuit the question would be decided on whether the infringing image was hosted on the defendant’s own server.

However, in the Southern District of New York under Goldman, the result does not depend on where the image resides. The questions is whether the defendant has caused the copyrighted image to be displayed:

Having carefully considered the embedding issue, this Court concludes, for the reasons discussed below, that when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result.

Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585, 587 (S.D.N.Y. 2018)..

The law is not settled, and a similar claim in a different circuit may have a different result.  Nevertheless, website owners have to be especially careful about what images they display on their websites, whether by actually uploading the image to their server or displaying an image residing on a third-party server via hyperlinking.  It’s critical to avoid the infringing display of a copyrighted image, no matter what technical process allows the image to appear on the screen.

Moral of the story

Keep a close eye on your website and a tight rein on your webmasters.  Never simply screen grab an image from the internet and display it on your site. You need to know whether any image you want to use is public domain or not. If it’s not, you need to go through the necessary steps to obtain permission from the copyright owner.  If you really want to play it safe, and avoid paying others for use of their images, do the creative thing and take your own photographs for use on your website.  No matter what, always beware of digital images. Sometimes they bite.

This article is for general informational purposes only and does not constitute legal advice.  If you have questions about any copyright related matters, please consult with your attorney.

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Thomas M. Wilentz is a published writer on intellectual property law who has been practicing trademark law for 18 years. His firm, Thomas M. Wilentz Attorney at Law, PLLC, was founded in 2003 and since then has helped clients from all over the USA, as well as from Canada, China, the UK, Australia, Malaysia, Mexico, Singapore and many other countries.