"When the Copyright Act was amended in 1976, the words "tweet," "viral," and "embed" invoked thoughts of a bird, a disease, and a reporter," Judge Katherine B. Forrest noted before breaking with past precedent and holding media companies liable for copyright infringement for linking to a tweet containing a copyrighted photograph. 

Photographer Justin Goldman took a photograph of New England Patriots' superstar quarterback Tom Brady heading to a meeting to recruit NBA Superstar Kevin Durant to the Boston Celtics. Goldman then posted it on his personal Snapchat. From there, users posted that same photograph on Twitter. From there, various websites — Time, Yahoo, several Vox Media websites, the Boston Globe, Gannet, and Breitbart — embedded that tweet into their articles. Even though Twitter was the company hosting the image on their servers, Goldman sued those online publications for copyright infringement, since the articles featured the tweet and showed the picture in-line. Indeed, those media companies argued that they did not host the image on their own servers — they merely asked Twitter to have the image appear. 

In past precedent, media companies relied on the so-called "server rule," which meant that web publishers were free to link to full-sized images protected by copyright, so long as the images are stored on another company's servers. This rule has existed for approximately a decade and was the backbone for the increasingly popular practice of media companies embedding links within their articles. 

judge Forrest, however, is seemingly not a fan of the current interpretation of the "server test." She held that a distinction exists between a search engine — think Google or Duck Duck Go — and a news site. In Judge Forrest's view, the user of a search engine is an active participant in searching for an image, while a viewer of the news site is more passive and merely receives pre-arranged content. Indeed, she noted that "Google ... provide[s] a service whereby the user navigate[s] from webpage to webpage," while a blog has full-color images awaiting the user regardless of whether the user is searching for that particular content. This, Judge Forrest believes, violated Goldman's exclusive right to display his copyrighted work.

Through this new interpretation, Judge Forrest held that the media companies in question were liable to Goldman for copyright infringement. What this means is that photographers may now have a stronger legal case against websites that embed their copyrighted works into articles without permission.  That is, assuming this ruling isn't overturned on appeal.

If you are an author or artist in need of help obtaining a federal copyright registration or enforcing your copyrights, you can contact the professional attorneys at Law Offices of John D. Gugliotta, P.E., Esq., LPA. Our registered attorneys can help you secure federal copyright registration! Contact us today here, or call us at (888) 298-8580.

The Law Offices of John D. Gugliotta, P.E., Esq., LPA publishes this blog for educational purposes only, not to provide specific legal advice. By using this blog site you indicate that you understand there is no attorney-client relationship between you and the Law Offices of John D. Gugliotta, P.E., Esq., LPA. This blog should not be used as a substitute for obtaining legal advice from a licensed attorney. In addition, statements made on this blog represent the viewpoints of the individual authors, and do not necessarily reflect the views of Law Offices of John D. Gugliotta, P.E., Esq., LPA or any of our clients.

On Monday, Grumpy Cat Limited was awarded nearly one million dollars in damages for Grenade Beverage LLC’s copyright and trademark infringement via unauthorized use of the “Grumpy Cat” meme. But let’s rewind to get the whole picture, here.

Grumpy Cat is a popular meme, wherein the cat Tardar Sauce looks, well, grumpy. Take a look!

After the image of Tartar Sauce was posted online in 2012, it quickly went viral. This prompted invitations for Tartar Sauce to appear on a myriad of television shows — such as Today, Good Morning America, American Idol, and The Bachelorette) — as well as front page features in The Wall Street Journal and New York Magazine. Incredibly, Tartar Sauce even starred in her own Christmas movie, broadcast on Lifetime Television Channel. No, really! Check it out:

This widespread fame prompted Tartar Sauce’s owners to form Grump Car Limited, which then acquired copyright and trademark protection in Grumpy Cat’s name, image, and likeness. By leveraging this intellectual property, Grumpy Cat Limited reaped millions of dollars in sales from officially licensed products. In 2015, Grenade contracted with Grumpy Cat Limited to leverage the company’s “Grumpy Cat” copyrights and trademarks in the sale of ice coffees branded “Grumpy Cat Grumppuccino” in exchange for royalty payments.

However, Grenade had bigger ambitions and wanted to use the Grumpy Cat meme — protected by Grumpy Cat Limited’s trademarks and copyrights — in the sale of its roasted coffee beans and tee shirts. Grenade approached the proud cat owners with plans, but was rebuked by the company. Nevertheless, Grenade continued and, without authorization, began making and selling roasted coffee beans and tee shirts featuring the meme. Grenade advertised these unauthorized products heavily on social media and, to make matters worse, failed to pay Grumpy Cat Limited any royalties on these unauthorized sales.

Grenade countersued Grumpy Cat Limited for breach of contract, for failure to uphold its end of the licensing agreement by not properly advertise the authorized iced coffee product covered by the licensing agreement. Nevertheless, the jury must have been taken with the grumpy Tartar Sauce, because it awarded Grumpy Cat Limited $701,000.00 in damages stemming from Grenade’s copyright and trademark infringement.

That’s enough to, hopefully, make Tartar Sauce enjoy the joys of life.

The Law Offices of John D. Gugliotta, P.E., Esq., LPA publishes this blog for educational purposes only, not to provide specific legal advice. By using this blog site you indicate that you understand there is no attorney-client relationship between you and the Law Offices of John D. Gugliotta, P.E., Esq., LPA. This blog should not be used as a substitute for obtaining legal advice from a licensed attorney. In addition, statements made on this blog represent the viewpoints of the individual authors, and do not necessarily reflect the views of Law Offices of John D. Gugliotta, P.E., Esq., LPA or any of our clients.