Is a social media post embedded in a news story copyright infringement? BARBERA v. CBS


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 a copyright owner the exclusive right reproduce, distribute, perform, display, transmit and make derivative works based on the original.  If someone other than the copyright owner exercises one of the exclusive rights, without authorization, that can be considered copyright infringement.  A copyright owner can combat copyright infringement by filing a lawsuit.  In that lawsuit a copyright owner can request an injunction to stop the infringing activity and request 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 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.   Social media encourages other people to republish social media posts to their friends.  Truly popular social media posts 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.

Traditionally fair use has provided news organizations with some protection from allegations of copyright infringement, however the ambiguity in copyright law and the blurring lines between news and entertainment have made it more difficult to tell when a news organization will be protected by a fair use defense.  Case law provides another shaky defense to copyright infringement, namely the server test.  The server test comes from PERFECT 10, INC. v. GOOGLE INC. 508 F.3d 1146 (9th Cir. 2007).  In that case the defendant was found to not be liable for copyright infringement when it provided a link to copyrighted material, but did not host a copy of the data itself.  However, several recent court cases call into question the reliability of that defense.

In JUSTIN GOLDMAN v. BREITBART ET AL, 17-cv-3144 (S.D.N.Y. 2018), several news organizations were sued by a photographer when the news organizations embedded the plaintiff’s social media post, which included a copyrighted photograph, in news stories.  The defendant’s moved for summary judgement on the grounds that they did not republish the copyrighted photograph, they were merely providing a link to the plaintiff’s social media post.  The court was not persuaded by this argument and denied the motion.  The case was later settled by the parties.

ROBERT BARBERA, v. CBS INTERACTIVE, 19-cv-04298 (S.D.NY 2019) is another case which involves a news organization embedding a photographer’s social media post in a news story. The defendant published an article about best dressed celebrities and embedded a link to a social media post from the plaintiff.  The plaintiff sued for copyright infringement.  The defendant answered the complaint with several defenses including fair use and that use of the copyrighted image was through in-line linking or embedding.  The two parties settled the matter in September 2019 without a ruling from the court.

Whether embedding a social media post in a news article constitutes copyright infringement or not, it is clear that there is an ambiguity in United States copyright law.  That ambiguity will only be resolved by legislation or a defendant that is willing fight a case all the way to a verdict.
