The well-known photographer Paul Nicklen won a copyright lawsuit in the US.
The case at hand concerns a dramatic video clip of starving polar bears created by the photographer and uploaded on Facebook and Instagram in 2017.
Without any permission from Paul Nicklen or National Geographic, Sinclair Broadcasting Group embedded this video through a link from Instagram. What’s more they take a screenshot from the video for its cover image.
A lawsuit followed. According to the Sinclair Broadcasting Group there was no infringement because they didn’t used or displayed the video on they website. They just used an embedded link from Instagram, that is to say the video was stored on another server.
According to the law in the US, most precisely the so-called “server rule” online displays or performances of copyrighted content accomplished through “in-line” or “framing” hyperlinks do not trigger the exclusive rights of public display or performance unless the linker also possesses a copy of the underlying work.
The court in New York disagreed with these arguments. The court stressed that the law is technology-neutral and is “concerned not with how a work is shown, but that a work is shown.”
The main problem from that point of view was the fact that although the video was embedded, the screenshot was taken separately and uploaded on the Sinclair Broadcasting Group website, which allowed their visitors to see one part of the video without playing it based on the link to Instagram. This constitutes a copyright infringement because displaying even a part of one work can be done based on permission from the copyright holders.
Other social media such as YouTube and Vimeo have already included an option where creators can choose whether or not their uploaded content to be embedded. For the time being, Facebook and Instagram haven’t done that which can trigger new lawsuits for copyright infringements in the future.