Goldman v. Breitbart News Network, LLC

Justin Goldman (plaintiff) took a candid photo of football player Tom Brady and posted the photo to his Snapchat. A photo posted to Snapchat is available for only 24-hours after posting. Goldman’s photo went viral and was featured in tweets made on Twitter by third parties. Breitbart News Network, LLC (Breitbart) (defendant) included tweets featuring Goldman’s photo in articles written and posted on Breitbart’s website. Breitbart embedded the tweets in the articles it published via embedded image hyperlinks, meaning that Breitbart copied the tweets’ URLs then added those URLs to their own website via an embed code, causing the tweets, along with Goldman’s photo, to be seamlessly displayed, in full size and resolution, within Breitbart’s articles. Embedding does not cause the photo to be downloaded to, or hosted on, Breitbart’s servers; the tweet and photo remained on Twitter’s servers. Goldman sued Breitbart for copyright infringement and moved for partial summary judgment, arguing that (1) he had never publicly published or licensed the photo; and (2) Breitbart embedding the tweets featuring his photo violated his exclusive public-display rights. Breitbart countered, arguing that, under the server test, it had not violated Goldman’s public-display rights because it only embedded an image of the tweet hosted on Twitter’s servers but had not downloaded or hosted the image on its own servers. It was undisputed that Goldman owned the copyright to the photo.