Tom Brady Pic Tweet Fight Sidesteps Appeals Court for Now

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By Peter Leung

A federal appeals court refused, at least for now, to take up a copyright dispute over a tweeted photograph of quarterback Tom Brady.

The U.S. Court of Appeals for the Second Circuit sent the case back down to the trial court in a July 17 order because it was too early to hear the case. The lower court will have to issue a final ruling on photographer’s Justin Goldman lawsuit against Time Inc. and several other publishers before the appeals court will reconsider the case.

The decision will lead to uncertainty for internet publishers. The U.S. District Court for the Southern District of New York’s ruling, if it stands, could open up publishers to copyright infringement claims—even if they aren’t storing the allegedly infringing content.

Goldman took the picture of the New England Patriots star walking with Boston Celtics general manager Danny Ainge, and social media users shared it widely on Twitter. The publications, including Yahoo! Inc., Gannett Co. Inc., and NESN, wrote stories about the photo and embedded the tweets.

Publications can be liable for infringement by embedding the tweets, the Southern District of New York said in February. But further proceedings are necessary before deciding whether the tweets were actually infringing, the court said, and the publications had a “very serious and strong fair use defense.”

The content of the embedded tweets appeared as part of the publishers’ webpages, but the data came from Twitter’s servers. The U.S. Court of Appeals for the Ninth Circuit said, in 2011, that linking to infringing photos stored on another server isn’t infringement, but the Southern District of New York disagreed. It said that the Ninth Circuit’s “server rule” isn’t well-established law, and several other courts have declined to adopt it.

The New York court also said Goldman is claiming infringement of the right to display a protected work, while the Ninth Circuit decision in Perfect 10 v. Google Inc. involved the right to redistribute a work.

The publishers asked the Second Circuit to review just the ruling on the “server rule.” But the court said a partial appeal, known as an interlocutory appeal, is unwarranted.

Norwick, Schad & Goering represented Goldman. Lebowitz Law Offices LLC represented Heavy Inc. Davis Wright Tremaine LLP represented Time. Winston & Strawn LLP represented Yahoo! Inc. Ballard Spahr LLP represented Gannett Co. Inc. Dewey Pegno & Kramarsky LLP represented NESN.

The case is Heavy, Inc. v. Goldman, 2d Cir. App., No. 18-00910, request for interlocutory review denied 7/17/18.

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