Bleacher Report Sued For Using New York Giants Player’s Image Without Photographer Consent

// A lawsuit has been filed against Bleacher Report for featuring an image of New York Giants tight end Evan Engram without the photographer’s permission. The complaint, filed on behalf of photographer William Kostroun, seeks copyright infringement statutory damages or, in the alternative, actual damages.

Based on a review of the complaint and the exhibit attached therewith, it appears that the image at issue was actually published by the New York Post but embedded on Bleacher Report with a link to an external article. If true, then this case is not a typical copyright infringement matter where a photographer is suing a third party for use of an image without consent. Instead, it creates a situation that puts what is called the “server rule” back in the forefront for copyright practitioners to follow.

In 2007, the 9th Circuit decided, in Perfect 10 v. Amazon, that “a defendant who provides a [framing or in-line] hyperlink … cannot incur direct copyright liability unless that defendant also ‘store[s] and serve[s]’ the copyrighted material to which the link points.” Under this rule, commonly referred to as the “server rule,” the 9th Circuit held that hyperlinks of any form are merely the facilitation of a user’s access to infringing works, which raises only secondary liability issues and not the type of direct infringement alleged in the Bleacher Report case.

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However, this “server rule” has recently been tested in other jurisdictions, including the court in which the lawsuit against Bleacher Report was initiated. In 2021, a judge sitting in the U.S. District Court for the Southern District of New York denied a motion to dismiss a complaint after the defendant embedded a video on its websites that was first published on the plaintiff’s Instagram and Facebook pages.

“The fundamental question at issue here is whether embedding a video ‘displays’ the video within the meaning of the Copyright Act of 1976. This Court concludes that it does,” wrote the judge. “Under the plain meaning of the Copyright Act, a defendant violates the author’s exclusive right to display an audiovisual work publicly when the defendant without authorization causes a copy of the work or individual images of the work to be seen.”

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Thus, in New York, it may not matter whether the content was actually placed on the defendant’s server for a copyright infringement claim to survive and reach a possible trial on the merits. Bleacher Report may still establish fair use, but this is unlikely to be a case thrown out on a motion to dismiss. Meanwhile, it appears that there is quite a split between different jurisdictions on this important issue and perhaps it is ripe for the Supreme Court to take it up.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at [email protected] and follow him on Twitter at @DarrenHeitner.

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Bleacher Report, Copyright, Darren Heitner, New York Giants, Sports