Time, Gannett Prep to Appeal Copyright Ruling on Tom Brady Photo

Websites linked to quarterback’s photo but didn’t store it

Media companies want ruling certified for appeal

Time Inc. and other media outlets are preparing to challenge a ruling they say fundamentally changes how copyright law works on the internet.

The media companies asked the U.S. District Court for the Southern District of New York March 5 to certify its ruling that embedding a tweeted picture of NFL quarterback Tom Brady can infringe the right to display a copyrighted work.

If the court grants the request, the companies can appeal the decision to the U.S. Court of Appeals for the Second Circuit.

Trial courts typically certify a decision when there’s a final ruling but have the discretion to do so earlier, if one of the parties wishes to appeal an important ruling that doesn’t necessarily end the dispute. In this case, there are outstanding issues relating to the facts of the specific case, and whether any fair use defenses apply.

The trial court said the media companies can be liable for copyright infringement even though they only linked to the photo, copies of which were stored on Twitter’s servers. The companies say the ruling is a fundamental break from previous courts, which have rejected copyright claims against websites if they didn’t host the infringing content on their own servers.

Plaintiff Justin Goldman had taken a picture of Brady, which he uploaded to Snapchat. The picture was shared among Snapchat users, eventually making its way to Twitter.

Several publishers posted stories about the picture and embedded tweets containing the picture. Those tweets, with the photo, appeared as part of the publishers’ webpages.

Goldman’s opposition to the request is due March. 13.

Judge Katherine B. Forrest issued the earlier opinion. Davis Wright Tremaine LLP is representing Time. Ballard Spahr LLP is representing Gannett Co. Inc. Winston & Strawn LLP is representing Yahoo Holdings Inc., and Pegno & Kramarsky LLP is representing New England Sports Network Inc. Norwick & Schad is representing Goldman.

The case is Goldman v. Breitbart News Network, LLC, S.D.N.Y., No. 17-cv-3144 (KBF), motion filed 3/5/18.