A US District Judge for the Southern District of New York ruled on February 15 that embedding someone else’s tweet on a website violates the tweeter’s copyright to exclusive display of the tweet. In that case, Goldman v. Breitbart News Network LLC, photographer Justin Goldman sued Breitbart News over its use of a candid photograph he took and tweeted. Breitbart News had embedded Goldman’s tweet (which included the photograph) alongside articles they had written about Brady. Goldman claimed that the use violated his copyright in the photo.
While the court agreed that Breitbart News’s actions violated Goldman’s exclusive display right, it acknowledged that the defendant news organization could still raise a number of defenses, including fair use. Fair use is an affirmative defense to copyright infringement, and under the fair use doctrine, limited use of copyrighted material is permissible without having to first acquire permission from the copyright holder. The likely reason the court did not consider fair use in this particular instances is that the defendant did not raise the defense in its pleadings, as one must do for affirmative defenses.
Twitter’s Terms of Service provide, in relevant part:
You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your photos and videos are part of the Content).
By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by Twitter, or other companies, organizations or individuals, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services. (Emphasis added.)
The district court’s ruling appears to be at odds with the ownership and licensing status described in these Terms, so it remains to be seen whether the district court’s ruling will be overturned on appeal (assuming the judgment is appealed).
Embedding tweets with photos can violate copyright, federal judge rules, ABA Journal, February 20, 2018
Image credit: Natee Meepian / Shutterstock.com