Using copyrighted content sourced from social media platforms on blogs, webpages, and in other social media posts always comes with risk of infringement claims if the poster doesn’t have a license to use that content. With how fast and easy it is to share content online today—especially since many established social media platforms readily offer sharing links and coding to embed content—individuals and brands can often find themselves on the wrong end of a copyright dispute that they weren’t expecting.
In order to try to circumvent liability when sharing copyrighted content, some users have relied on embedding content rather than directly copying that content into a post or webpage. Unlike directly copying content into a webpage, embedding uses HTML instructions to direct a user’s computer to the server where the content’s data actually resides. While the user still sees the content on the screen normally, the data for that content is not actually copied to the poster’s server. Essentially, embedding is like showing a user a faraway painting on a wall through a telescope. The user sees the painting as if it were in front of them, but the painting has not left the wall upon which it resides. How, then, can there be a claim that a copy was illegally made?
Yet copyright infringement claims around embedding online content have become a particularly tricky to parse. Courts are currently split on how to approach these types of copyright infringement claims with the confusion mainly revolving around how to interpret the word “display” in the context of the Copyright Act.
The Ninth Circuit, for example, has adopted the “Server Test,” which basically boils down to where the data for the copy of the work is stored. The Copyright Act states that “[t]o ‘display’ a work means to show a copy of it.” Embedding would therefore not be considered showing a copy of a work because what appears on a screen is not an actual fixed and tangible copy but is instead “the result of merely sending instructions to the place where the copy in question resides.” 5 Patry on Copyright §15:7 (2024). A defendant that only embeds a work does not display the work and thus does not infringe. Instead, that defendant simply directs users to where the work’s data is actually stored without ever creating or displaying a copy. Perfect 10, Inc. v. Amaazon.com, Inc., 508 F.3d 1146, 1160-61 (9th Cir. 2007); see also Lynk Media LLC v. Mediaite, LLC, No. 24-cv-29 (PKC), slip op. at 3 (S.D.N.Y. Jan. 14, 2025); Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (C.D. Cal. 2006).
On the other side of the spectrum is the Southern District of New York, which has taken a very different view of embedding and the Server Test. To the Southern District of New York, if what appears on the screen is the work, then that constitutes a display regardless of where the actual data resides. See, e.g., Goldman v. Breitbart News Network, LLC, 302 F.Supp.3d 585, 593 (S.D.N.Y. 2018) (“The plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have “displayed” a work within the meaning of the Copyright Act.”). As a result, a defendant may still be liable even if the content is merely embedded on its website. After all, users are still seeing the work the same as they would if it was directly copied onto the webpage.
Ultimately, the best practice will always be to get a license for any shared media or content no matter the source. Depending on jurisdiction, a user may be able to rely on the Server Test to provide a defense against a copyright infringement claim. At the end of the day though, it is still only a defense. The availability of the Server Test and the likelihood of successfully relying on it would not necessarily stop a copyright owner from bringing a claim in the first place. A copyright owner could still litigate at least an initial claim against a user who embeds their copyrighted content without permission, and these claims can often be difficult and expensive to defend.
By: Kaitlyn Garvin| kgarvin@sandsip.com
