Publishers Can Appeal Battle With Photographer Over Tweet, Judge Says

A federal judge has authorized Time, Yahoo, Breitbart News and other publishers to immediately appeal her recent decision that they may have infringed copyright by embedding a tweet that contained a photo in news stories.

U.S. District Court Judge Katherine Forrest in New York said in an order issued Monday that the legal question presented by the dispute could have a far-reaching affect. She added that she was granting the news organizations' request to allow a fast appeal "in order to bring resolution to an important and controlling question of law and to more efficiently resolve this matter."

The dispute centers on a photo of New England Patriots quarterback Tom Brady taken in July 2016 by photographer Justin 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 photo on their sites. The news organizations countered that they didn't "display" Goldman's photo for purposes of copyright law because the tweet, including the embedded image, was hosted on Twitter's servers.

Forrest rejected the news companies' argument, ruling that there was no basis for the location of the image to determine whether its display on a news site may have infringed copyright.

Time, Yahoo and the other defendants then asked Forrest to allow an immediate appeal to the 2nd Circuit Court of Appeals. They argued that online publishers have relied on the idea that embedding content doesn't raise the prospect of liability, provided that the content is stored on outside companies' servers.

The News Media Alliance, EFF and other outside organizations supported the publishers' request. Those groups said in papers filed earlier this month that Forrest's ruling "was met with widespread consternation because if it is indeed the law, then media organizations, social media platforms and Internet users must now substantially alter the ways in which they display content online."

Forrest said Monday that she accepted the arguments that her ruling "has created tremendous uncertainty for online publishers."

She added: "In this case, the embedded image was hosted on Twitter; given the frequency with which embedded images are 'retweeted,' the resolution of this legal question has an impact beyond this case."

Next story loading loading..