• by Wendy Davis  @wendyndavis, July 17, 2024

A federal trial judge in Utah has ruled that two paid contributors to ComicBookMovie.com infringed copyright by posting pieces that embedded links to Annie Leibovitz photos that originally appeared in Vanity Fair articles.

The ruling, issued Monday by U.S. District Court Judge David Barlow in Utah, is at odds with decisions by the 9th Circuit Court of Appeals, which has held since 2007 that displaying images stored on other companies' servers doesn't infringe copyright.

The decision grew out of a lawsuit filed in 2021 by Trunk Archive, which has the exclusive right to display Leibovitz's photos -- including portraits of “Star Wars” actors Adam Driver, Daisy Ridley, Mark Hamill and Carrie Fisher.

Trunk Archive alleged that ComicBookMovie.com, its owner, and two paid contributors infringed copyright by posting articles that displayed Leibovitz's photos of the celebrities.

The photos were visible on ComicBookMovie.com through in-line linking -- meaning that the pieces included links that embedded images from an outside site -- and were not stored on ComicBookMovie.com's servers, according to the court papers.

The defendants argued that the case should be dismissed for numerous reasons, including that the 9th Circuit has repeatedly ruled that embedding photos stored on other companies' servers does not infringe copyright. That 9th Circuit reaffirmed that holding -- known as the “server test” -- as recently as this year.

The server test stemmed from a lawsuit stemmed from a lawsuit by adult entertainment company Perfect 10 against Google over search results that offered in-line links to outside publishers' sites that contained unlicensed photos. Google's code allowed users to view the photos without leaving Google because the images remained on the outside publishers' servers.

The 9th Circuit sided with Google, ruling in 2007 that web publishers don't infringe copyright by displaying images stored on servers operated by third parties.

Earlier this year, the 9th Circuit said that holding remained good law. The 10th Circuit, which covers Utah, hasn't ruled on the issue.

Barlow disagreed with the 9th Circuit's decision and issued summary judgment against the two contributors to ComicBookMovie.com. (He declined to grant summary judgment against ComicBookMovie.com and its owner, writing that the claims against them raised warranted further factual proceedings.)

“The court now finds the 'server' test to be unpersuasive,” Barlow wrote.

“The court concludes that a defendant who embeds a copyrighted image on a webpage, without hosting the image on its servers, may infringe the copyright holder's display rights,” he added.

At least two federal judges in New York (which isn't within the 9th Circuit) have also rejected the server test and ruled that websites embed copyrighted images might infringe copyright, regardless of whether the images are stored on those sites' servers.