It’s Not Fair

Solving The Embedded Copyright Stalemate

Your favorite videographer posts an original short film to Instagram. Don’t worry—it’s still her video. Instagram, like every social media platform, refuses ownership. Even better, she’s protected by copyright. She has exclusive rights to reproduce, distribute, display, perform, and prepare derivative works of her work. What’s the catch? When she agreed to Instagram’s terms, she offered Instagram a license to reproduce, distribute, display, perform, and prepare derivative works of her work on its platform. Still, you would be hard-pressed to scroll through your favorite online gossip magazine without viewing an image replicating a social media post.

Indeed, the true catch is that social media platforms both license creators’ content to use on their platforms and let digital media providers display that content on their webpages through embedding tools. But when a content creator’s content is shown prominently on countless webpages, the social media platform’s promise of “ownership” thins: if any digital media provider can, without restriction, show any and all digital content hosted on a social media platform, it seems the creator’s exclusive right to that content is legal fiction.

This Note explores whether embedded content infringes copyright. A 2007 Ninth Circuit decision created a doctrine known colloquially as the “server test,” which holds that anything embedded in a webpage cannot infringe copyright. Recently, however, Southern District of New York courts have held against the server test, splitting the nation’s largest copyright circuits. Instead of dismissing embedded content, or rather, embedded copyright, as uninfringeable, Southern District of New York courts have explored whether embedding is fair use of the content. This Note outlines why the server test cannot apply to embedded copyright. It reviews the most recent Copyright Act, Supreme Court case law, and copyright law’s legislative history; all indicate technological process—like embedding—need not limit copyright protection. This Note also investigates whether fair use resolves the issue by reviewing the 2021 Supreme Court case Google LLC v. Oracle America, Inc. and recent Southern District of New York case law. This Note concludes that social media platforms should provide safeguards to limit embedded copyright infringement because “fair use” provides embedders limited protection.

a. J.D. Candidate, 2023, University of Illinois College of Law; B.A., 2016, Indiana University. Thank you to the members and editors of the University of Illinois Law Review for their guidance and diligence in publishing this Note. Special thanks to Teaching Assistant Professor Barbara Kaplan for helping me develop this topic and to Joe Luzadder for his assistance and feedback throughout the process. Finally, a thank you to my Grandfather for supporting my Note, and to my parents for their continued love and encouragement.

The full text of this Note is available to download as a PDF.