By Eric D. Morton
Embedding is a popular method of linking a blog or website to a video or image on another website. A blogger or website developer uses an application programing interface ( “API”) embed tool to embed HTML code on their website. The code then retrieves an image or video from another website and displays that image or video on the website with the embedded HTML code. A recent court decision held that such embedding may be an infringement of the copyrights of the owner of the video or image.
Paul Nicklen is a Canadian nature photographer. He shot a video of starving polar bear and posted the video on his Instagram and Facebook accounts to illustrate the effects of global warming. The dramatic video contain captions regarding climate change and a notice as to whom to contact about using the video.
Many persons embedded code linking their websites to the video without permission or a license from Nicklen. Among those using the video as such was Sinclair Broadcasting. Sinclair Broadcasting is a media giant with over 200 broadcasting affiliates. As the U.S. District Court later noted: “Sinclair Broadcast Group “embedded” the Video by including in its website an HTML code provided by Instagram or Facebook that directed web browsers to retrieve the Video from the Instagram or Facebook server for viewing on Sinclair’s website. The Video appeared within the body of the Sinclair article even when a reader took no action to retrieve the Video or to navigate to Nicklen’s Facebook or Instagram account, and even when a reader did not have a Facebook or Instagram account.”
Nicklen sued Sinclair Broadcasting for copyright infringement. Sinclair Broadcasting moved to dismiss the case on the grounds that it hadn’t “displayed” the video within the meaning of copyright law. Sinclair Broadcasting’s argument was based on the fact that it had not uploaded the video to its website’s server. This is the so called “server rule” that has been followed in a few jurisdictions.
The Federal Judge in Nicklen’s lawsuit rejected the server rule. The judge held that the use of the video – playing on Sinclair Broadcasting’s website – was a display under copyright law.
The judge wrote: “Thus, under the plain meaning of the Copyright Act, a defendant violates an author’s exclusive right to display an audiovisual work publicly when the defendant without authorization causes a copy of the work, or individual images of the work, to be seen — whether directly or by means of any device or process…”
Read the entire ruling here.
I am not surprised by this decision since there was considerable litigation in the 1990s about the practice of framing. Framing was the display of a page from one website on another website. The webpage would be “framed” so that a viewer wouldn’t know that the difference. Framing is an unfair business practice and copyright infringement. It should be noted that providing a link to another website that redirects the viewer to that site is not infringement.
Website owners must avoid infringing on the copyrights of videos, photographs, content, or images. The legal penalties for copyright infringement are severe. A defendant found to have infringed can be hit with statutory damages of hundreds of thousands of dollars plus attorneys fees and court costs.
What this means for website owners and bloggers is that they should seek permission prior to using API tools to embed images and videos that they do not own.
Eric D. Morton is the principal attorney at Clear Sky Law. He can be reached at 760-722-6582, 510-556-0367, and emorton@clearskylaw.com
