Renowned nature photographer and Sony Artisan Paul Nicklen has won a copyright lawsuit against Sinclair Broadcast Group, which embedded a video from Nicklen’s Instagram on the site and contained a screenshot of it without seeking permission.
As mentioned by JD Supra, Niklen filmed a short video of a hungry polar bear and posted it on Facebook and Instagram in 2017. PetaPixel published the clip with permission from National Geographic, but neither Nicklen nor National Geographic gave permission to Sinclair Broadcasting Group, which embedded the Instagram post on its own pages and teased the article with a screenshot taken from the video. Sinclair asked the court to dismiss Nicklen’s complaint, arguing that the incorporation of a video is not an infringement of copyright, and therefore the publication of the video was reasonable use.
Judge Jed Rakoff of the Southern District of New York disagreed, as Sinclair not only embedded the Instagram post, but also used a screenshot from the video to promote the article.
Rakoff states that copyright is defined by the “display” of a work as the display of “a copy thereof, either directly or by means of a film, slide, television image or other device or processor, in the case of a film or other audiovisual work, for to show individual images without accompaniment. “Combined with the simple meaning of the word” show “,” defendant “violates an author’s exclusive right to display an audiovisual work publicly” if a defendant “obtains a copy of the work or individual images of the work. be seen – either directly or using a device or process known in 1976 or developed thereafter. “Rakoff added that” the exclusive display right in copyright is technology neutral “and” is not concerned with how a work is displayed, but that a work is displayed. “
Sinclair argued that because the content was stored on another server, it did not embed the content the same as displaying it directly. Rankoff disagreed. He also found that because Sinclair used a still image of the video regardless of whether the user clicks to play the video or not further added in case of copyright infringement.
The “Server Rule” protects many organizations from copyright infringement, as explained by Columbia Law:
The “Server Rule” means that online views or representations of copyrighted content made through “in-line” or “framed” hyperlinks do not trigger the exclusive rights to public viewing or performance, unless the linker also has a copy of the underlying work. As a result, the rule protects a wide range of online activities against claims of direct copyright infringement, and effectively excludes these activities from the scope of copyright law. Although the server rule has been relatively consistent in compliance since its adoption in 2007, some courts have recently proposed a departure from the precedent, noting the doctrinal and statutory inconsistencies underlying it.
Rankoff rejected a Sinclair argument that such a ruling “would impose a far-reaching and destructive responsibility” and would “stop the Internet”, since the core of the case was not necessarily built into the video, but the use of a screen that did not require the video explicitly should be played or entered. Initially, it was claimed that the office was not necessary to view Nicklen’s content.
The rulings regarding the incorporation of content from social media have resulted in somewhat unclear rules for engagement with media publications. On the one hand, Instagram and the parent company Facebook are being sued for allowing content that is posted on the websites at all. Instagram recently adjusted its guidelines and states that the media still needs to seek permission from artists to embed content from the site.
On the other hand, judges like the one in Nicklen v. Sinclair Broadcasting Group mainly hinged on screens of embedded and not the embedded material itself.
One solution that Facebook seems reluctant to use has been used by both YouTube and Vimeo for a while: build in restrictions. It is possible to let content uploaded to one of the video services playback via built-in, and since this is a switchable option, it allows content creators to decide if they want the work to be shared via built-in. Because Facebook does not make this an option, it can be argued that the company is complicit in allowing copyright infringement. That may be the crux of the lawsuit against Facebook, which says the company “got online publishers” to build in links to Instagram to drive traffic – and the association’s advertising revenue – to the site.
Photo credits: Elements of header photo licensed via Depositphotos.