In November 2023, we discussed the “server test” (or server rule) as a controversial defense to copyright infringement used by website operators. To reiterate the basics, when a web platform “displays” a work (usually a photograph or illustration) by embedding a link that points to another party’s server, the Ninth Circuit has held that this does not infringe the rights of the copyright owner. That precedent was established in 2007 in the case Perfect 10 v. Google, but since then, several courts have taken issue with the “server test,” and now we can add the District Court for Utah to that list.
The problem many rightsholders, copyright experts, and we at RightsClick® have with the “server test” is that the law clearly states that “public display” of your work is your exclusive right. And it should not matter how a user of your work causes it to be displayed. Courts outside the Ninth Circuit, including the copyright-rich Second Circuit, have begun to express this general opinion as well. In fact, in a ruling this week in the Utah court, Judge David Barlow reversed his own prior decision in a case involving the display of photographs by Annie Leibovitz.
At issue, the site comicbookmovie.com (CBM) displayed Leibovitz’s photographs from a series she created in conjunction with the motion pictures Star Wars: The Last Jedi and Star Wars: The Rise of Skywalker. The plaintiff Trunk Archive, managing licensing rights for these photographs, sued CBM, and initially, Judge Barlow held that they presented no reason to set aside the “server test” precedent. Asked to reconsider, the same court has now stated the following:
The court now finds the “server” test to be unpersuasive. The Perfect 10 court reasoned that Google did not “display” the copyrighted works at issue through embedded links because it did not possess a copy of the works on its servers. But possession of a physical copy is not a prerequisite to displaying a copyrighted work. Instead, the plain text of the Act makes clear that “[t]o ‘display’ a work means to show a copy of it, either directly or by . . . any other device or process[.]”
As we said in our last post on this subject, the “server test” is a question that could go to the Supreme Court, especially if the circuit courts continue to be split on the rule. For now, we agree with Judge Barlow that the text of the copyright law is clear and that the “server test” may one day be a relic of the courts grappling with an internet it didn’t quite understand. When photographs and visual works are infringed rampantly online, it is especially important that at least commercial users like the one in this case are held responsible for obtaining permission to use those works. If the ill-conceived “server test” is finally dropped it means one less dodge for those who make excuses for using your work without permission or compensation.
