Newsweek Ruling Offers Copyright Lessons On New Tech

On March 21, the U.S. District Court for the Southern District of New York issued a decision in McGucken v. Newsweek LLC about whether Newsweek infringed a photographer's copyright by embedding his Instagram photo in an online news article.

In denying both parties' cross-motions for summary judgment, the federal court rejected the news magazine's server test defense, finding that the publication could still be liable for unauthorized display of the photograph even if it never stored the plaintiff's image on its own computers.

The court further held that neither party was entitled to summary judgment on the issue of whether Newsweek's posting was protected by fair use, nor on whether, by virtue of Instagram's then-extant terms of use, McGucken had given Instagram the right to sublicense his content for use by other Instagram users, such as the defendant.