• by Wendy Davis  @wendyndavis, March 9, 2018

Time, Yahoo, Breitbart and other news organizations are displaying "chutzpah in spades" in an ongoing copyright battle over a tweet that contained a photo of football player Tom Brady, the photographer's lawyer says in new court papers.

"No one will ever accuse these defendants of understatement -- or of lacking what the Supreme Court ... called 'chutzpah,'" the attorney for Justin Goldman writes in papers filed Thursday with U.S. District Court Judge Katherine Forrest in New York.

The papers come in response to the news organization's request to immediately appeal Forrest's recent ruling that the news sites may have infringed copyright by embedding a tweet that contained a photo taken by Goldman of the New England Patriots quarterback. In her ruling, Forrest rejected the news companies' argument that only the company that hosts the image is potentially liable for infringement.

Time and the other news organizations earlier this week asked Forrest to authorize an immediate appeal to the 2nd Circuit Court of Appeals. They argue that her ruling contradicts publishers' longstanding expectations that embedding content won't raise the prospect of liability, provided that the content is stored by outside companies.

Goldman's attorney is now blasting that request, arguing that publishers' expectations shouldn't determine the case's outcome. "The fact that they got away with such copyright usurpation for more than a decade does not make it right, or legal," counsel writes.

"The stated rationale for the motion is that companies like theirs have come to 'expect' that they should be free to continue to help themselves with legal impunity to every copyrighted photo on the Internet just because they’ve been getting away with it for the past ten years. Chutzpah in spades," he writes.

The battle centers on a photo of Brady taken in July 2016 by Goldman. He uploaded the picture to Snapchat, following which other users posted the photo to Twitter. After the photo appeared on Twitter, news sites including those operated by Time, Gannett, Breitbart and Yahoo embedded the Tweet in articles.

Goldman sued the news companies last year, arguing that they infringed his copyright by displaying the image on their sites.

They argued that they didn't "display" Goldman's photo for purposes of copyright law, because the embedded images were hosted on Twitter's servers.

Time and the others urged Forrest to dismiss the case. They pointed to an 11-year-old decision by the 9th Circuit Court of Appeals in a matter pitting adult entertainment company Perfect 10 against Google. In that case, the appellate court ruled that Google's search engine didn't infringe copyright by creating "in-line" links to outside pages that contained unlicensed photos. Those in-line links allowed users to view the photos without leaving Google, but the images themselves remained on outside companies' servers. The decision hinged on the fact that the infringing images were not stored on Google's servers.

Forrest rejected that contention, ruling that the location of an image doesn't determine whether its public display may have infringed copyright. But she also said the news sites could still ultimately prevail under other theories. She wrote that there were "genuine questions" about whether Goldman effectively put the image into the public domain by posting it to Snapchat; she also said the news sites might be able to argue that they made fair use of the image.

Forrest gave the news companies until March 14 to respond to Goldman's latest papers.