## Facts

- Justin Goldman, a photographer, took a candid photograph of Tom Brady and initially uploaded it to Snapchat.
- The photograph was copied and reposted by others and later appeared on Twitter in third-party tweets.
- Multiple online publishers ran articles about the Brady-related story and embedded tweets containing the photograph using Twitter’s embed code.
- The embedded tweet made the photograph appear within defendants’ webpages at full size and resolution, while the image file remained hosted on Twitter’s servers.
- Goldman owned a valid copyright in the photograph and did not license or authorize defendants to use it.
- The parties bifurcated the case; Phase One addressed only whether embedding constituted a “display” under 17 U.S.C. § 106(5), presented on cross-motions for partial summary judgment.

## Issues

1. Whether embedding tweets containing a copyrighted photograph constitutes a “public display” under 17 U.S.C. § 106(5) when the image file is stored on a third-party server.
2. Whether to apply the Ninth Circuit’s “server test,” which would limit “display” liability to sites that store the image on their own servers.

## Decision

- The court granted Goldman’s motion for partial summary judgment and denied defendants’ cross-motion on the Phase One question.
- The court held that defendants’ embedding of tweets containing the photograph constituted a public display within the meaning of § 106(5).
- The court rejected the server test as inconsistent with the Copyright Act’s text and structure.
- The court left for later phases issues of infringement liability as to particular defendants, defenses (e.g., fair use, license, DMCA safe harbors), and damages.

## Legal Principles

- The Copyright Act’s display right turns on whether a defendant “shows” a copy of the work to the public “by means of any device or process,” not on where the underlying file is stored.
- A site that takes steps to cause a copyrighted image to appear on its webpages through embedding code can “display” the image publicly even if the image is fetched from a third-party server.
- Technical, behind-the-scenes distinctions about server location do not control when the user experiences the work as being shown on the defendant’s site.
- Policy concerns about widespread embedding practices are addressed through statutory defenses or legislative action, not by narrowing the statutory definition of “display.”

## Conclusion

The court held that embedding tweets containing a copyrighted photograph may infringe the copyright owner’s exclusive public display right because embedding causes the image to be shown to the public on the publisher’s webpage, even when the image file remains hosted on a third-party server.


Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585 (S.D.N.Y. 2018)