Digital-Age Copyright:  Photographs and the News

You might think that among the most straightforward relationships between a user and a creator of a copyrighted work would be that of a news organization and a photographer—namely that the news organization should license the photographs it uses for any of its stories.  It is also common-sensical that whenever a news organization displays a photograph in a manner that either disseminates news under its brand and/or promotes its brand, that the organization is deriving commercial benefit from its display of the photographer’s work.  As such, it should not matter—in fact the nature of the web demands that it must not matter—where the image is actually hosted.  Unfortunately, that’s not necessarily how the law works right now.

This article in Above the Law by attorney Scott Alan Burroughs alludes to a case that exemplifies how the current copyright law underserves creators in the digital age. At issue is a photograph of athlete Tom Brady, taken by photographer Justin Goldman in 2016, and used without permission, first by Breitbart News and then by ten other news organizations.  Goldman alleges infringement of his exclusive right to display his work and seeks relief in the form of damages and attorney fees from all eleven news organizations.

The EFF filed an amicus brief (10/5/17) on behalf of the defendants, asserting the precedent established by the 9th Circuit in Perfect 10 v. (a.k.a Perfect 10 v. Google) (2007), in which the plaintiff argued that Google violated the display right by making full-size images available via the Google Image Search tool. The court held that because these full-size images were hosted in various places around the web and not on Google’s servers, that Google was not in possession of “copies” according to the plain language of the law (Sec. 101) and could not, therefore, infringe the display right.

The decision in Perfect 10 provided a precedent known as the “server test,” and the EFF may be correct that it will be the standard applied in the Goldman case.  But it shouldn’t be because it represents an easy end-run around the public display right that effectively obliterates the right in cyberspace.  It is also important to note that linking to pages (what is sometimes called “deep-linking”) should not be viewed as infringing, but this kind of “in-line linking” whereby a site embeds code to cause an image to appear on its page while the image is hosted by another party’s server, is the problem. (Meanwhile, note that Playboy is suing BoingBoing for displaying centerfold images in exactly the same manner.)**

The Server Test Doesn’t Make Sense

To maintain the purpose of copyright with respect to the way the internet functions, the standard in a case like Goldman v. Breitbart et al should not turn on whose server hosts a copy of the photograph, but who takes action to display the photograph and for what purpose. This interpretation of the author’s right to display works would conform to any reasonable person’s understanding of the actual market experience.  “The argument [for the server test], in essence, is that for-profit sites should be able to publish whatever they want without the consent of the artist so long as the photograph or video is published via an embed. This argument has no merit, though, because the end result is exactly the same to the viewer, and the viewer is the basis for the site’s profits,” Burroughs writes.

The news corporations in this case are making use of Goldman’s photograph to generate interest in whatever story they want people to read and to promote their brands online. Clearly, they are leveraging the value created by the photographer, which is exactly what copyright is designed to protect.  As such, licensing in these instances would be consistent with the goals of copyright law, regardless of the technical means by which a user makes the display of the protected work visible to its audience.  Moreover, the photographer may be earning revenue through advertising by allowing an image to be used on Site A, but if Site B, C, and D in-line link the image to their pages, the photographer loses revenue.

Clearly, this has implications beyond news organizations. If, for instance, Johnson & Johnson, by the rationale applied in Perfect 10,  were to display photographs for marketing purposes without permission, this would demonstrably undermine copyright’s intent; and it is hard to imagine that the public would actually support this kind of corporate appropriation of individual labor without permission or compensation. Certainly, every time a site like PetaPixel shares another story in which a business uses a photographer’s work for advertising without permission, I never see anyone cheer for the corporate infringer. (Though they may privately light sparklers or something over at the EFF.)

Is Legislative Reform Needed?

Be it far from this layman to question the statutory interpretations of the 9th Circuit Court of Appeals, but whether it’s in Goldman or another case, a few attorney colleagues tell me that the ruling in Perfect 10 is hardly the final word.  And many of them think the 9th Circuit erred.  But if that court’s “plain reading” of the statute holds sway in future rulings, then it may be necessary to clarify any pre-digital-age, statutory vagueness pertaining to the right make works available.

In 2016, the U.S. Copyright Office issued guidance on the Making Available Right apropos U.S. obligation to WIPO Internet Treaties. Although the Office recommended that legislative amendment was not needed vis-a-vis the treaties, the Register did recognize various inconsistencies in court rulings where cyberspace meets the rights of distribution, public performance, and public display.  In this regard, the Office provided a few possible avenues Congress could pursue to clarify these three exclusive rights relative to the internet, but also warned against approaches that would “represent a sweeping reconfiguration of U.S. copyright law.”

In particular, the guidelines state, “Should Congress … wish to clarify that the public performance and display rights cover offers to communicate a work, it could consider amending the Transmit Clause (§101) to provide that offering to transmit or otherwise communicate a performance or display to the public satisfies the definition of performing or displaying a work ‘publicly.’”  [Emphasis added]

A statutory change like this would confirm that the display right may be infringed by a party that makes a work publicly viewable, even without hosting a copy of the work.  This would correspond with common sense and the practical realities of the digital market, though many attorneys are likely to view such an amendment as unnecessary. Displaying an image on your site, no matter how it got there, ought to implicate the display right.

With pending proposals to create a small claims process for copyright infringement, it will be important to see what the courts do in cases like Goldman v. Breitbart.  This is because visual works are by far the most frequently and casually infringed works on the internet, and visual artists like photographers theoretically have much to gain from both a small-claims process and restoration of a meaningful display right.

Yes, any change in the status quo made by either the courts or Congress would make Google et al go ballistic; and the EFF would have to sit shiva for a year.  But it is well past time to drop the whole “copyright stifles everything” rhetoric along with all the other tech-utopian nonsense that nobody seems to be buying anymore.  It is time to recognize that technicalities like the “server test” stifle authors and creators without whom this whole internet thing would be utterly useless.

**CORRECTION:  Playboy was indeed suing Boing Boing at the time of this post but not for exactly the same conduct.  See post here.

David Newhoff
David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

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