Embedding an image online without permission could violate EU copyright law, says the EU’s high court in a decision issued on March 9, 2021. Article 3(1) of the EU’s Directive 2001/29 grants copyright owners the exclusive right to authorize or prohibit any “communication to the public” of their works. In VG Bild-Kunst v. Stiftung Preußischer Kulturbesitz, Case C-392/19 at ¶ 55 (Mar. 9, 2021), a decision reminiscent of recent cases in the United States, the Court of Justice for the European Union (CJEU) interpreted the phrase “communication to the public” to include the act of embedding a copyrighted image in a third-party website via framing.
In the United States, copyright infringement via the use of embedded images is a hot topic thanks to a series of recent federal district court decisions. It began in 2018, when online content users took notice of a decision from the Southern District of New York styled Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585 (S.D.N.Y. 2018). Goldman involved the alleged infringement of a photo of Tom Brady with Boston Celtics management that had gone viral. The district court held that when Twitter tweets featuring the photo were embedded in online news articles, the news outlets and blogs that published the articles infringed the copyright owner’s exclusive right to publicly display the photo. Id. at 586. Subsequent cases have applied Goldman’s precedent and analyzed potential defenses, such as the grant of a sublicense from the social media platform where the embedded image was stored (e.g., Instagram), and fair use. Babcock v. Gannett Satellite Info. Network, 2021 WL 534754 (N.D. Ind. Feb. 12, 2021); Boesen v. United Sports Publ’ns, Ltd., 2020 WL 6393010 (E.D.N.Y. Nov. 2, 2020); Walsh v. Townsquare Media, Inc., 464 F. Supp. 3d 570 (S.D.N.Y. 2020); McGucken v. Newsweek LLC, 464 F. Supp. 3d 594 (S.D.N.Y. 2020); Sinclair v. Ziff Davis, LLC, 454 F. Supp. 3d 342 (S.D.N.Y. 2020).
The CJEU decision, however, adds an interesting wrinkle. In its decision, the CJEU explains that its interpretation of the EU’s Directive applies only when the copyright owner implements “effective technological measures” against a third party embedding the subject work.
[I]n order to ensure legal certainty and the smooth functioning of the internet, the copyright holder cannot be allowed to limit his or her consent by means other than effective technological measures, within the meaning of Article 6(1) and (3) of the Directive 2001/29 . . . . In the absence of such measures, it might prove difficult, particularly for individual users, to ascertain whether that right holder intended to oppose the framing of his or her works. To do so might prove even more difficult when that work is subject to sub-licenses . . . .
VG Bild-Kunst, Case C-392/19 at ¶¶ 46, 55.
Even with a decision from the EU’s high court and a growing body of case law in the United States federal district courts, questions about the application and reach of current precedent remain unsettled—and we do not expect answers or a consensus anytime soon. In the interim, if you embed someone else’s photos or videos, then tread lightly. Right or wrong, the act alone might be enough to trigger a costly copyright infringement claim. A safer course of action is to keep the following in mind: if you are going to use someone else’s content, make sure you have permission (preferably in writing) or a valid legal excuse (e.g., fair use). Stay tuned for updates.