Eleanor M. Lackman July 19, 2023
MSK Client Alert
In Hunley v. Instagram, LLC, — F.4th — (July 17, 2023), the Ninth Circuit thwarted another attempt to outlaw embedding (also called “in-line linking”) of photographs. The court affirmed a district court’s ruling that parties who embedded on their websites photographs from Instagram did not violate the plaintiff photographers’ display right as set forth in 17 U.S.C. §106(5), and accordingly Instagram was not secondarily liable for copyright infringement. While the ruling provides some comfort for publishers that embed photographs on third-party sites, the law remains unsettled nationwide. This is the first appellate decision to address the issue of embedding, though a few district courts in other circuits have recently addressed the issue, as previously reported here.
By Karen Gullo July 20, 2023
The 9th Circuit Court of Appeals, in a ruling published this week, made clear that linking does not constitute infringement, and kept in place an important test to determine under what circumstances entities can be held liable for displaying copyrighted content online.
Linking is a central feature of the web, but some copyright holders aren’t too fond of it, claiming it facilitates infringement because websites can show images they own and platforms that host content allow those websites to embed the images.
Like it or not, copyright holders have hit a wall, as they did this week, when they’ve taken their infringement claims to the 9th Circuit. The court yesterday upheld dismissal of a copyright infringement lawsuit, Hunley v. Instagram, brought by two photographers against Instagram for permitting BuzzFeed News and Time magazine to embed their Instagram posts in news stories.
The Takeaway from Inline Linking
Inline linking, also known as photo embedding, is a common practice that involves displaying content from a third-party source on a website. The practice is technically and legally not considered copyright infringement if the content remains hosted on the third-party server and the alleged infringer doesn’t create a physical copy of the content. This is known as the “server test”. However, the law is still unsettled, and some cases have questioned whether the location of the content matters when determining if it has been “displayed” on a website. For example, in Hunley v. Instagram, LLC (2023), the Ninth Circuit ruled that embedding photos from Instagram on other websites did not violate the photographers’ display rights.
Five things the U.S. Copyright Office clearly states are not protected by copyright—even if they are a tangible expression of an idea or thought.
Ideas, methods, and systems are not covered by copyright protection.
According to the U.S. Copyright Office, Circular 2, this covers quite a few things including:
This category includes items that are considered common property and with no known authorship.
This includes phrases such as “The sky is blue,” which have no known authorship associated with them.
Other examples include:
A choreographic work, whether original or not, is not subject to copyright protection unless it has been videotaped or notated.
The same applies to speeches that have not been transcribed before or after they are given, as well as any other types of performances.
That catchy slogan you came up with for your business? No dice on a trademark.
The good news is that while not protected by copyright, if it pertains to your business (for example, goods and services), it can be protected with a trademark.
Also exempt:
Recipes also fall under this category. Specifically, the listing of ingredients (even if it’s your own recipe ingredients) is not protected by copyright.
This applies to formulas, compounds, and prescriptions as well.
There are exceptions, however, such as when recipes are compiled in a cookbook. Or if the recipe is accompanied by “substantial literary expression,” or a specific combination of recipes, there may be a basis for copyright protection.
Contrary to what you might think, fashion (that is, a shirt, dress, or another article of clothing) is not protected by copyright law.
Despite the fact that copyright law protects such things as architectural design works (Circular 41) or works of the visual arts (Circular 40), fashion is all about clothing and accessories, which under copyright law are considered “useful articles.”
It is possible, however, to copyright a specific fabric pattern (Burberry plaids for example), but not the actual dress.
And, it should be noted that while designs can’t be copyrighted, they can be patented.
For more information please visit: U.S. Copyright Office, or click here to copyright your creation today.
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