Another federal court judge in New York has held that embedding provides no protection against a copyright infringement claim, and signaled that the practice may undermine a fair use defense, as well.

In Nicklen v. Sinclair Broadcast Group, Inc., plaintiff brought a copyright claim based on defendants’ unlicensed use of his footage of a starving polar bear. Plaintiff had posted the video to his Instagram and Facebook accounts to urge action against climate change. Defendants re-published the video in an online article titled, “Starving polar bear goes viral in heartbreaking video,” which reported that the polar bear video had reached over one million views on Facebook. The article embedded the video, which allowed the entire video to appear in the body of the article without being stored on defendants’ servers.

Under the Copyright Act, it is a copyright violation to publicly display a copyright holder’s work without authorization. Defendants argued that under the “Server Test” they had not “displayed” the video because, by embedding it, the video remained on a third-party server, not defendants’. The court squarely rejected this argument, joining another federal court decision in New York – Goldman v. Breitbart News – in rejecting the Server Test. The court reasoned that the right to exclusively display a work is “technology-neutral,” and that by embedding the video defendants had caused the video to appear in the article no differently than other visual content on the page.

Defendants’ decision to embed the video also undermined their fair use defense. The court agreed that defendants’ re-publication of the video in an article about how popular the video had become was transformative, which weighed in favor of fair use.  The court held, however, that embedding the entire video weighed against fair use because defendants could have used a screen grab from the video, or a screenshot of the number of likes the video received, to convey the same point. Given these competing considerations, the court held that it could not rule as a matter of law that defendants’ re-publication of the video was a protected fair use.

Nicklen indicates the growing risk from embedding copyrighted works: No longer a reliable defense to copyright infringement; it may undermine the fair use defense as well.