Recently a New York federal district court upended the internet user understanding that someone could link, or embed, their own online content to a third party’s copyright protected subject matter without permission to do so. According to Nicklen v. Sinclair Broadcast Group, Inc. [hereinafter Sinclair], as a matter of law such embedded subject matter violates the copyright owner’s exclusive right to display a United States copyright registered work.
In its motion to dismiss, Sinclair contended that embedding is not a display under the Copyright Act. Instead, Sinclair relied upon the ‘server’ test of Perfect 10, Inc. v. Google et al. [hereinafter Perfect 10] in which only a server that actually stores the images and provides that image directly the user, could infringe the display right.  In other words, if the linked image remains on the photographer’s own server and a copy is not fixed in the alleged infringer’s computer, then there is no display within the meaning of the Copyright Act.
Nevertheless, the New York federal district court held that Nicklen had plausibly alleged that Sinclair embedded his U.S. copyright registered video without a license, and thereby violated his exclusive display right. This court distinguished Nicklen from Perfect 10, because Perfect 10 addressed a search engine’s display of thumb nail images of content upon third party servers; however, this display occurred only if an end user affirmatively selected these thumb nail images.  In contrast, in Nicklen the embedded video automatically appeared within Sinclair’s online articles as an integral portion of Sinclair’s own content regardless of an end-user’s user preference. As a result, the video (i) appears as soon as a viewer accesses Sinclair’s website and (ii) is perceived as integral to Sinclair’s own content on its website. The Nicklen court further noted that the definition of display in the Copyright Act is “to cause or permit to be seen,” and this was the result in this case when the defendant’s link provided automatic video views. Therefore, the intentional embedding of the video on the Sinclair websites was a display under the Copyright Act and required the copyright owner’s permission.
With this split between the Ninth Circuit appellate court opinion in Perfect 10 and the Nicklen district court opinion, the best strategy for news media outlets, both online and off, is to always obtain permission to display third person copyright registered subject matter. This would also be true for other organizations such as, but not exclusively, universities and businesses.
©2021 Adrienne B. Naumann. All rights reserved. Ms. Naumann does not endorse or sponsor the advertisements at email@example.com
 Nicklen v. Sinclair Broadcast Group, Inc., No. 20-10300(S. D. N. Y. July 30, 2021). Sinclair also raised the defense of fair use, but the court denied Sinclair’s motion to dismiss the second amended complaint.
 See 17 U.S.C. 106(5).
 Nicklen, supra at note 1.
 508 F.3d 1146(9th Cir. 2007).
 Id.In Goldman v. Breitbart News Network, LLC, 302 F. Supp.3d 585, 595 (S.D.N.Y. 2018) the court granted an inter locutory appeal to confirm its holding that embedding of content was a display within the meaning of the Copyright Act. However, this litigation ultimately settled so there was never a definitive appellate court ruling.
 Nicklen supra at note 1.
 Id. supra at note 2.