Law360 interviewed Finnegan partner Margaret Esquenet to discuss the top copyright and trademark cases to watch in the second half of 2022. Margaret provided insight on Hunley v. Instagram, a case where two photographers have challenged how easily Instagram lets websites embed photos. A California judge dismissed their lawsuit alleging that Instagram is liable for secondary infringement when third-party sites use Instagram's embedding tool to display their photos and videos, citing a 2007 Ninth Circuit ruling in Perfect 10 v. Amazon, which established the server test that finds websites do not legally "display" a copyrighted image if it is stored on its original website and merely embedded in search results. The photographers disagreed and are now urging the Ninth Circuit to revisit the ruling, stating that the Perfect 10 server test has been rejected by “virtually every court” considering the same issue.
Margaret said, “The Ninth Circuit may conclude that these cases are persuasive and harmonize the test for determining whether embedding arises to copyright infringement. The case is also important even if the Ninth Circuit does not modify Perfect 10, because that could create a circuit split of interest to the Supreme Court." If the appeals court opts to overturn the server test, Margaret said companies and individuals may "need to reevaluate risks of making available and using embedding functionality.”
Read “Copyright & TM Cases to Watch in the Second Half of 2022”