Hopefully most reporters, layout artists, and web designers at media companies understand that they can’t simply copy a photo or other illustration they find online and use it in their print, broadcast or online news report, without regard for any copyright issues. (Then again, maybe they don’t, since that scenario is a constant source of litigation.)

Until a recent court decision, a way of avoiding the copyright problems online, instead of downloading an image and then uploading it to illustrate a story, was inserting coding to “embed” a graphic or photograph, so that it appears to users of a website but has not been copied and uploaded to that site. Instead, it remains stored as part of the site where it originated, which presumably has the copyright or obtained permission to use the image. This technique is used not only to “embed” photos and graphics, but is also often used to show social media posts in news content.

The legal principle allowing this, known as the “server rule,” originated in a 2007 decision by the federal Ninth Circuit Court of Appeals, which covers nine western states. The case involved Google’s display of thumbnail versions on its site by embedding photos from the Perfect 10 web site; the court held that such embedding was not copyright infringement because no actual copying was involved. According to a law review article on the subject, in the years since virtually every court that has considered the issue has adopted the reasoning of the “server rule.”

But 2017, federal trial judges in both Texas and New York rejected this concept, holding that use of an embedded link to display a copyrighted image without permission could violate the copyright owner’s exclusive right to display the image. The online free speech group the Electronic Frontier Foundation has decried these cases, calling one of them a “dangerous attempt to undermine the in-line linking system that benefits millions of Internet users every day.”

Most recently, in April another federal judge in New York used the “server rule” to dismiss a case against the website Mashable in an April ruling. But two other judges of the same court rejected the “server rule” in decisions in June and July, leading Instagram to forbid embedding of images from its site.

One or more of these New York cases could be appealed to the Second Circuit Court of Appeals, setting up the possibility of a conflict with the Ninth Circuit if the Second Circuit were to agree with the lower courts’ rejection the “sever rule.” Such conflicts often end up being resolved by the U.S. Supreme Court.

The Fourth Circuit, which includes South Carolina, does not appear to have ruled on the issue.

If more courts—particularly appeals courts—reject the “server rule,” the issue would be what would replace it. One proposal is that liability for copyright infringement in such cases should be based on whether the person or entity embedding the graphic knows that the use is infringing. (The Fourth Circuit recently adopted this standard for proving contributory infringement.) Another is that the copyright laws be amended to provide the imbedding is permissible.

Whatever the outcome, those with websites, including news organizations, should be conscious of these issues and to use embedded materials carefully.

Update: Court Holds Media Website Not Subject to ADA

Two years ago, I wrote a column on recent cases in which individuals sued over websites that did not  facilitate access to the sites by users with disabilities. An appeal was then pending after a Florida court held in 2017 that Winn-Dixie’s website was a place of public accommodation because it was tightly integrated with the physical stores and violated the Americans with Disabilities Act because the site was not sufficiently accessible to visibly impaired customers. It took four years, but this April the federal Eleventh Circuit Court of Appeals vacated the lower court’s ruling, holding that the ADA is limited to physical facilities, and does not include web sites.

More recently, in July, a federal court in New York used the same rationale to dismiss a lawsuit over the USA Today website, holding that “Neither a newspaper publisher nor a digital media content provider falls within any of the twelve enumerated places of public accommodation categories under the ADA.” An appeal of this ruling was filed with the federal Second Circuit Court of Appeals in early August and is now pending.

This leaves the application of the ADA to websites not connected to physical places that accommodate customers, such as retail stores, muddled. The federal appeals courts remain split on the question of whether the ADA applies beyond a business’s physical locations, and includes websites. The Fourth Circuit Court of Appeal, which includes South Carolina, has not ruled on this question.

In October 2019 the U.S. Supreme Court declined to review a case that could have resolved this question.

So the issue remains, but at least now there is the New York court’s precedent rejecting application of the ADA requirements to a news organization’s website.

Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 20 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.