Fueled by the desire to share engaging content with a broader audience, many social media users “repost” compelling images, videos, memes, and articles from others as a way of contributing to the dispersion of online communication within a hyperconnected digital society.

In a recent decision from the United States District Court for the Southern District of New York, Prepared Food Photos, Inc. v. Chicken Joe’s, LLC (January 12, 2024) the court examined the disputed intersection between social media reposts and copyright infringement. In many cases, when someone reposts content on social media without permission from the original creator, it may indeed constitute copyright infringement.

This case teaches that when reposting content on social media platforms and elsewhere, businesses need to exercise caution to avoid potential legal liabilities.

Below, we discuss this case and several other rulings that offer insight into the legal perspective on online content sharing, as well as strategies for social media users, particularly businesses, to navigate these issues and minimize potential legal risks.

Prepared Food Photos v. Chicken Joe’s

Plaintiff Prepared Food Photos, Inc., a company that licenses professional food photographs, brought an action for copyright infringement against Chicken Joe’s, LLC, a restaurant in New Rochelle, New York specializing in chicken dishes. Plaintiff alleged that Chicken Joe’s reposted one of Plaintiff’s copyrighted photographs on social media without permission.

Despite being served with the complaint, Chicken Joe’s failed to appear and respond to the allegations. As a result, plaintiff moved for a default judgment. Before granting such a motion, a court must review a plaintiff's allegations to ensure they constitute a valid claim for relief. In this case, the court found that Plaintiff established ownership of a valid copyright and demonstrated that Chicken Joe’s had copied the photograph, but given the relative novelty of the issue of social media reposts, the court gave this point further discussion.

Legal Ramifications of Sharing Social Media Content

The Copyright Act provides that anyone who violates any of the exclusive rights of the copyright owner is an infringer. To prevail in a copyright infringement action, a plaintiff must prove (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.

While some legal scholars argue that reposts cannot constitute copyright infringement – the Prepared Food court quoted both Eric Goldman, a Professor of Law and Co-Director of the High Tech Law Institute at Santa Clara University School of Law, and a Tulane Journal of Technology and Intellectual Property article – the court nevertheless adopted a broad interpretation of the Copyright Act.

It reasoned that a repost on social media constitutes a “display” of the copyrighted work, falling within the definition of a “copy” under the Copyright Act, stating, “there was ‘no genuine factual dispute concerning the second element of Plaintiff's copyright infringement action’ where defendant did not dispute that the subject photograph was copied and ‘direct, uncontested evidence’ showed the subject photograph posted on defendants' social media page.”

Thus, the court was satisfied that the repost on social media constituted an actual copy of Plaintiff's work sufficient to support a claim of copyright infringement.

The Ninth Circuit Court of Appeals has taken a different approach to certain social media sharing activity, although in a slightly different, and notably distinct, context.

Many social media platforms permit other websites to “embed” content or images from the platform onto a third-party site. Thus, when a website wants to include an image, computer instructions on the website provide an address for where the image is stored. In most cases, the address directs the viewer to the original host’s website or platform, where the content was originally published. Instagram, for example, allows a post to be visible elsewhere. While it may look like the embedded content is directly copied on a third-party website, it is not, and the content at the original location can still be edited or taken down by the host, whereby the original content would also be edited or taken down anywhere it is embedded.

Thus, according to the Ninth Circuit’s 2007 decision Perfect 10 v. Amazon, reinforced in the 2023 Hunley V. Instagram, LLC decision, the content is not a copy, and therefore not copyright infringement. This is known as the “server test,” as the content is only stored on the original server and not copied onto a new server for the website embedding the content. In 2012 the Seventh Circuit came to a similar conclusion in Flava Works v. Gunter.

The server test has been rejected in the Southern District of New York, most recently in Nicklen v. Sinclair Broadcast Group, Inc., et al. (2021), whereby Judge Rakoff stated, “[t]he server rule is contrary to the text and legislative history of the Copyright Act.”

Conclusion and Takeaways

As it stands, courts across the country have split as to whether embedding copyrighted content from social media onto third-party websites constitutes copyright infringement. For reposts within a social media platform, it is arguably clearer.

Notwithstanding these differences, businesses utilizing social media as part of their marketing strategies need to exercise caution when reposting content on social media platforms and elsewhere to avoid potential legal liabilities.

Most social media platforms require that users agree to terms and conditions granting the platform and its users permission to repost content for personal, noncommercial use. The distinction between commercial and non-commercial purposes holds less weight from a copyright perspective, and an eager litigious plaintiff is generally going to be more inclined to pursue larger business targets over individuals with limited assets that may engage in copyright infringement. And providing “credit” to the original owner is not going to constitute a defense to infringement.

To avoid liability, businesses should stick to creating original content. However, if a business chooses to incorporate content from others, it is crucial to obtain proper authorizations or licenses before using copyrighted material. This proactive approach can help mitigate legal risks and prevent costly litigation.

The Prepared Food Photos decision provides valuable insight into how courts may interpret social media reposts in other jurisdictions. Businesses should stay informed about legal developments in this area and adapt their practices accordingly.