A federal court may finally have the opportunity to address the widely debated copyright issues surrounding social media websites such as Pinterest, Facebook, and Tumblr. In a complaint filed on May 4, 2012 in the District Court for the Southern District of New York, Perfect 10, Inc. (“Perfect 10”), a publisher of adult entertainment photographs, magazines, and other copyrighted media, sued Tumblr, Inc. (“Tumblr”) for direct and contributory copyright infringement. Tumblr is a social media website that allows users to post content such as text, photos, quotes, links, music, and videos, and publicly share the content with other users through the website. Subject to Tumblr’s terms, users are able to post and re-post their own content or content from other sources.

As previously discussed by Arent Fox in Copyright and Trademark Issues Highlighted During Recent Controversy Over Pinterest’s Terms of Service, content sharing websites that allow users to post third party text and images face the challenge of respecting the rights of content owners while encouraging the exchange of ideas and content within their communities. Many content owners argue that simply posting content without permission from the owner constitutes copyright infringement. Owners further argue that users cannot rely on protections of the fair use doctrine because the websites are commercial in nature. To address these concerns, the websites have developed terms of use and policies that attempt to minimize copyright infringement by, for example, providing for the notice and takedown of infringing works pursuant to the Digital Millennium Copyright Act (“DMCA”). While the DMCA offers safe harbor to websites, when a website does not comply with a takedown notice under the DMCA it can be subject to liability for copyright infringement. Tumblr’s alleged failure to properly respond to Perfect 10’s DMCA notices is at the heart of this recent lawsuit.

Perfect 10 alleges that the unauthorized display of over two hundred images on Tumblr’s website violated the Copyright Act in two ways. First, Tumblr’s employees allegedly posted some of Perfect 10’s content, thereby directly resulting in copyright infringement. Second, by allowing users to post and re-post Perfect 10’s copyrighted works, Tumblr engaged in contributory copyright infringement. Contributory copyright infringement occurs when a defendant is not actively infringing a work, but materially assists or induces a third party to infringe. Here, Perfect 10 asserts that because it repeatedly notified Tumblr of the infringing content pursuant to the DMCA, and because Tumblr did not comply with the DMCA’s requirements or sufficiently police its users, “Tumblr has induced, caused and materially contributed to the infringing activities of its subscribers.”

If this case proceeds, it could test the legality of posting and re-posting third party content and the scope of the fair use defense, and could greatly affect the future of these websites. Accordingly, websites that allow users to post content should continue to revise their policies and terms of use, and take appropriate steps to ensure that unauthorized content is promptly removed. Arent Fox is continuing to monitor this case as well as other cases involving copyright infringement. Please contact Sarah Bruno or Luna Samman with questions.