Ok. Plaintiff took a photo, on the street, of Tom Brady and Celtic GM Danny Ainge. Plaintiff uploads it to Snapchat and it goes viral. People tweet the photo and various defendant news organizations embed the tweets in an article about Brady and the Celtics. Defendants, citing the server test as articulated in Perfect 10, argue that they are not violating the exclusive display right of the copyright owner. The court characterizes defendants’ argument as “the physical location and/or possession of an allegedly infringing image determines liability under the display right. Although the Brady photo is displayed ‘seamlessly’ on their webpages (ed. note. – really? seems that the tweet is graphically recognizable as a tweet – isn’t the border of the tweet a seam?), Defendants are simply providing instructions for the user to navigate to a third-party server on which the photo resides.
Held: The server test from Perfect 10 is probably wrong. Noting the small commercial establishment exemption form the display right, the Court states: …that these establishments require an exemption, despite the fact that to turn on the radio or TV is not to make or store a copy, is strong evidence that a copy need not be made in order to display an image.”
If the server test is correct, user volition would seem to take this case out of that test. In Perfect 10, the user had to click on the link to get to the original image. Here, Defendants were effectively displaying the image to their readers.