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ARTICLE · 11 AUGUST 2021

S.D.N.Y. Again Rejects "Server Test" For Display Of Embedded Content

Finnegan, Henderson, Farabow, Garrett & Dunner LLP
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Canadian conservationist Paul Nicklen posted a video he took of an emaciated polar bear in the Canadian Arctic on his Instagram account on December 5, 2017.

United StatesIntellectual Property
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
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Canadian conservationist Paul Nicklen posted a video he took of an emaciated polar bear in the Canadian Arctic on his Instagram account on December 5, 2017.  In the text accompanying the "haunt[ing]" and "heartbreaking" video, Nicklen asked his followers to consider the effects of climate change.  Sinclair Broadcast Group, Inc., like many other news outlets, covered Nicklen's viral content.  In an online article, Sinclair "embedded" Nicklen's video through HTML code provided by Instagram.

Nicklen, as author and registered copyright owner of the image, sued Sinclair for copyright infringement in the United States District Court for the Southern District of New York.  Sinclair moved to dismiss the action, "arguing that embedding a video does not 'display' the video within the meaning of the Copyright Act" and seeking protection under the Ninth Circuit's so-called Server Test.  Judge Jed S. Rakoff denied Sinclair's motion, holding that "[t]he server rule is contrary

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