Is the Server Test on Borrowed Time? Copyright Liability for Embedded Social Media Content

[1]

Embedded Content and the Server Test:

Instagram provides a technical mechanism permitting a viewer to embed another user’s posted image into blogs, other social media posts, and online articles.[2] Yet the technical ability to embed an image does not authorize the use of the copyrighted work.[3] This features is thus in violation of The Copyright Act of 1976, which grants copyright owners the exclusive right to publicly display their works, protecting against unauthorized displays and copying.[4] 

In Perfect 10, Inc. v. Amazon.com, Inc.,[5] the Ninth Circuit established what became known as the “server test” in the context of Google’s image search.[6] Under the server test, a website or search engine does not “display” a copy of an image under the Copyright Act, unless the image is stored on its own server and communicated to the user’s computer.[7] The Ninth Circuit later applied the server test to social media embedding in Hunley v. Instagram, LLC,[8] holding that the test was not limited to the search engine context.[9] Applying the test, the court concluded that websites embedding the plaintiffs’ Instagram posts did not directly infringe their display rights because they did not store the underlying images on their own servers.[10]

Recent Application and Challenges to the Server Test:

The Ninth Circuit continued to apply the server test in 2024, holding in McGucken v. Valnet, Inc.[11] that Valnet did not infringe McGucken’s display rights because its website merely embedded references to McGucken’s Instagram posts and did not distribute copies of the works to internet users.[12] Courts outside the Ninth Circuit, however, have questioned whether the server test is consistent with the Copyright Act.[13]

In Great Bowery v. Best Little Sites,[14] the District of Utah rejected the server test after concluding that Perfect 10’s interpretation of the display right was unsupported by the statutory text.[15] The court focused on the Copyright Act’s definition of “display” and reasoned that the statute does not require the alleged infringer to possess the copy being displayed.[16] Accordingly, a website may infringe the display right by embedding a copyrighted image even when that image is stored on a third-party server.[17]

The Southern District of New York similarly rejected physical possession as a prerequisite to infringement.[18] In Prepared Food Photos, Inc. v. Chicken Joe’s, LLC,[19] the court relied on Goldman v. Breitbart News Network, LLC,[20] which held that embedding a photograph constituted a display because physical possession of the image was not required to violate the Copyright Act.[21] Applying that reasoning to a social media repost, the court concluded the repost “show[ed] a copy” of the copyrighted photograph and therefore constituted a display under the Act.[22] Together, these decisions reflect competing interpretations of the Copyright Act: while the Ninth Circuit’s server test focuses on where an image is stored and transmitted, other courts have focused on whether the defendant caused the copyrighted image to be displayed.[23]

Implications for Online Publishers:

The differing approaches to the server test create uncertainty for online publishers. Although the server test remains controlling law in the Ninth Circuit under Perfect 10 and Hunley, its rejection by other courts limits publishers’ ability to rely on the location of an image as protection from direct infringement liability.[24] Decisions like Great Bowery and Prepared Food Photos suggest that media companies, businesses, bloggers, law firms, and other website operators cannot assume that embedding copyrighted content eliminates the risk of direct infringement.[25] As a result, whether embedding implicates a copyright owner’s display right may depend on the jurisdiction in which a claim is brought.[26] The server test may therefore be firmly established in the Ninth Circuit, but its rejection elsewhere casts doubt on whether serve

[1] Photo by Julian, A Person Holding a Cell Phone with Social Media on the Screen, Unsplash (Aug. 1, 2023), https://unsplash.com/photos/a-person-holding-a-cell-phone-with-social-media-on-the-screen-0I21xHfgw0E.

[2] See Alicia Wagner Calzada, How Instagram Changed its Embedding Feature–and What That Means for Photographers and Publishers, Copyright Alliance (Jan. 20, 2022), https://copyrightalliance.org/how-instagram-changed-embedding-feature/.

[3] See id.

[4] See 17 U.S.C. § 106(5) (2018).

[5] 508 F.3d 1146, 1155 (9th Cir. 2007).

[6] See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1155 (9th Cir. 2007).

[7] See id. at 1160.

[8] 73 F.4th 1060, 1071 (9th Cir. 2023).

[9] See Hunley v. Instagram, LLC, 73 F.4th 1060, 1071 (9th Cir. 2023).

[10] See id. at 1077.

[11] No. 24-511, 2024 WL 5166624, at *1 (9th Cir. Dec. 19, 2024).

[12] See McGucken v. Valnet, Inc., No. 24-511, 2024 WL 5166624, at *1 (9th Cir. Dec. 19, 2024).

[13] See Meaghan H. Kent, Linda J. Zirkelbach, & Matthew Julyan, Federal Courts Split on ‘Server Test’ in Copyright Infringement Cases Involving Embedded Images, Venable LLP (Aug. 1, 2025), https://www.venable.com/insights/publications/2025/08/federal-courts-split-on-server-test-in-copyright.

[14] 2024 WL 3416038, at *9 (D. Utah July 15, 2024).

[15] See Great Bowery v. Best Little Sites, No. 2:21-cv-00567-DBB-JCB, 2024 WL 3416038, at *9 (D. Utah July 15, 2024).

[16] See id at 6, 9 (citing 17 U.S.C. § 101 (2018)).

[17] See id. at *10.

[18] See Prepared Food Photos, Inc. v. Chicken Joes, LLC, No. 23-cv-3895 (JGLC) (JW), 2024 WL 384997, at *4 (S.D.N.Y. Jan. 12, 2024).

[19] No. 23-cv-3895 (JGLC) (JW), 2024 WL 384997, at *4 (S.D.N.Y. Jan. 12, 2024).

[20] 302 F. Supp. 3d 585, 594 (S.D.N.Y. 2018).

[21] See Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585, 594 (S.D.N.Y. 2018).

[22] See Prepared Food Photos, Inc., 2024 WL 384997, at *5 (S.D.N.Y. Jan. 12, 2024).

[23] See generally McGucken v. Valnet, Inc., No. 24-511, 2024 WL 5166624 (9th Cir. Dec. 19, 2024); see also Great Bowery v. Best Little Sites, No. 2:21-cv-00567-DBB-JCB, 2024 WL 3416038 (D. Utah July 15, 2024); Prepared Food Photos, 2024 WL 384997.

[24] See generally Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007); see also Hunley v. Instagram, LLC, 73 F.4th 1060 (9th Cir. 2023).

[25] See generally Great Bowery, 2024 WL 3416038; see also Prepared Food Photos, 2024 WL 384997.

[26] See Sonia Autret, Now on Display: In-Line Linking in the Age of the Server Test, 91 Fordham L. Rev. 1901, 1922 (2023).