On June 2, 2026, the Fifth Circuit heard argument in Emmerich Newspapers, Inc. v. Particle Media, Inc., the first time a federal court of appeals outside the Ninth Circuit has had to decide whether embedding content that lives on someone else’s server infringes the copyright owner’s exclusive right of public display. I took up that question in 2018 (Is In-Line Linking Illegal Now?) and again in 2022, in a post titled “Is ‘Photo Embedding’ Copyright Infringement? It Depends on the Court.” My answer in 2022 was just that: it depends on the court. Emmerich may be the case that changes the answer, and a ruling either way could finally push this issue to the Supreme Court.
A reminder of what we are fighting about. The Copyright Act grants authors the exclusive right “to display the copyrighted work publicly,” and that right has proven remarkably resistant to resolution in the internet context. Courts across the country have been unable to agree on a deceptively simple question: when a website embeds an image that lives on someone else’s server, and that image appears on a visitor’s screen, who has displayed it?
The answer matters enormously for how the web works. Embedding is ubiquitous. News articles embed tweets and Instagram posts. Blogs pull in YouTube videos. Aggregators surface images from across the internet. If embedding counts as a public display by the embedder, vast swaths of ordinary internet activity become potential copyright infringement. If it doesn’t, copyright holders may find themselves powerless to stop third parties from making their images appear on millions of screens without credit, without payment, and without permission.
To see how the law got here, and why Emmerich matters so much, we have to start with the Ninth Circuit’s 2007 landmark decision in Perfect 10, Inc. v. Amazon.com, Inc.
The Perfect 10 “Server Test”
Perfect 10 involved Google Image Search, which pulled full-size images in from third-party sites through inline linking. Did Google violate the image-owners’ right of public display?
The Ninth Circuit found its answer in how the Copyright Act defines three terms: “display,” “copy,” and “fixed.” To “display” a work is to “show a copy” of it. A “copy” is a material object in which the work is “fixed,” and a digital image is fixed when it is stored on a server. The Ninth Circuit reasoned that a party displays a work only when it shows a copy stored on its own server.
That distinction decided the case. Google never stored the images, which remained on the third-party sites that had posted them. All Google sent the user’s browser was a line of HTML, a string of text giving the address where the image lived. Because Google had no copy of the image to show, the court held, it did not display it.
That reasoning became known as the “server test,” and for years it functioned as the safe harbor for the entire embedding ecosystem: if the image sits on someone else’s server, the embedder has not displayed it. The Ninth Circuit doubled down in Hunley v. Instagram, LLC (2023), holding that BuzzFeed and Time did not infringe when they embedded photographers’ Instagram posts in news articles. The court also rejected the argument that the test should be limited to search engines. It applies, the court said, based on the method of display, not the setting in which the display occurs.
The District Courts Revolt
The trouble is that the Ninth Circuit has been alone. Outside it, the server test has met steady resistance, and the most influential rejection came in Goldman v. Breitbart News Network, LLC (2018), a case I discussed here. Justin Goldman photographed Tom Brady on the street in the Hamptons, posted it to Snapchat, and watched it spread to Twitter. Several news outlets embedded the tweet in articles about Brady. None stored the photo. Goldman sued, and under the server test, that should have been the end of the case.
However, Southern District of New York Judge Katherine Forrest disagreed, and her reasoning has framed the debate ever since:
The Court agrees with plaintiff. The plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have “displayed” a work within the meaning of the Copyright Act.
The statute defines “display” as showing a copy, she explained, not as making and then showing a copy. The server test reads a reproduction requirement into the display right that Congress never wrote, effectively collapsing one exclusive right into another. She also made a common-sense point that has stuck: copyright liability should not turn on a technical distinction that is invisible to the person actually looking at the image.
The Second Circuit never resolved this issue. It declined interlocutory review, the case settled, and Judge Forrest’s opinion has sat on the books, unreviewed, ever since. Other courts picked up the thread. The Southern District of New York reached the same result in McGucken v. Newsweek (2022) and Nicklen v. Sinclair Broadcasting Group (2021). The Northern District of Texas, in Leader’s Institute v. Jackson (2017), said that to the extent Perfect 10 required possession of a copy before there could be a display, it respectfully disagreed.
A pattern ran through several of these decisions: the courts tried to preserve a carve-out for search engines, suggesting Perfect 10 might still be right in its original setting even if it should not be extended. A group of copyright scholars who later weighed in as amicus at the Fifth Circuit had no patience for that move. Congress wrote specific exemptions into the Copyright Act where it wanted them, for libraries, for classrooms, for certain small businesses. Search engines are not on the list. Inventing one by judicial improvisation, they argued, is not statutory interpretation.
What all this produced was a standoff, but not a circuit split. The only appellate law endorsed the server test, while a growing line of trial courts found it wrong, and copyright plaintiffs who could pick their forum increasingly filed outside the Ninth Circuit. As I wrote in 2022, that left website owners with no safe option but to treat embedding as risky everywhere, at least until an appeals court outside the Ninth Circuit finally ruled. Two 2025 cases have now brought that moment close.
Texas Splits From Itself: UrbanImage
In July 2025, the Western District of Texas rejected the server test in UrbanImage Media Ltd. v. IHeartMedia, Inc. A Denver radio affiliate of IHeartMedia ran an online “in memoriam” article about the musician Chuck E. Weiss and embedded a YouTube video that contained a screengrab of a photograph of Tom Waits owned by UrbanImage.
The photo lived on YouTube’s servers, not IHeartMedia’s, and IHeartMedia moved to dismiss based on the server test. District Court Judge Xavier Rodriguez was not persuaded, and he gave three reasons. First, the server test contradicts the text: “display” means showing a copy, not making and then showing one. Second, the fixation question is closer than Perfect 10 let on, because embedded code causes an image to appear on the screen for more than a transitory duration, which is enough to satisfy the statutory definition of “fixed.” Third, where in Hunley the Ninth Circuit had brushed aside the Supreme Court’s Aereo decision as a public-performance case, Judge Rodriguez read Aereo the other way, for the broader proposition that invisible technical distinctions should not decide liability when the user’s experience is identical. He also found that IHeartMedia’s deliberate steps, going to YouTube, copying the embed code, and dropping it into the article, easily met the volitional-conduct requirement for direct infringement. Motion to dismiss denied.
The significance is hard to miss. UrbanImage sits in the Fifth Circuit, and so does Emmerich, the case that produced the opposite result and is now on appeal. The circuit’s own district courts are pointing in opposite directions.
The Case to Watch: Emmerich
Emmerich Newspapers, Inc. v. Particle Media, Inc. is the one to watch, and it is a bigger case than a single misused photograph. Emmerich Newspapers publishes local news across Mississippi. Particle Media runs NewsBreak, a news-aggregation app whose crawler scraped thousands of Emmerich’s articles. For some, NewsBreak copied the full text onto its own platform. For 748 others, the “framed-view” articles, it used a WebView to display Emmerich’s content from Emmerich’s own website, inside a window wrapped in NewsBreak’s interface and ads.
The full-view articles were never going to survive. Particle copied and stored that content, which is exactly what the server test treats as infringing. The framed-view articles are the interesting part. Particle argued that because it never stored or served that content, it never displayed it. It was acting like a browser, pointing users to material Emmerich was hosting and transmitting itself.
The district court agreed. Judge Tom Lee acknowledged the district courts that have gone the other way, but found the Ninth Circuit’s reasoning more persuasive, and noted the obvious: there is no Fifth Circuit precedent, and the Ninth Circuit is still the only court of appeals to have ruled. He identified what Patry on Copyright describes as the “fatal flaw” in the opposing view, that the embedder does not transmit a display of the work but only tells the browser where to find it. He added a point specific to framing: even in framed-view, Emmerich’s content stayed on Emmerich’s servers, so the party actually displaying it was Emmerich, not Particle.
Emmerich appealed, and the case has drawn a crowd. Professor Mark Lemley and other copyright scholars filed an amicus brief supporting Particle. Their core argument is that the entity that publicly displays a work online is the one whose server transmits it. Embedding is not transmission, it is direction. The embedder tells a browser where to look; the host server decides whether and what to send, and keeps ultimate control, since it can refuse the request, delete the file, or block embedding altogether. Treat embedding as direct infringement, they warn, and you turn millions of ordinary users and publishers into infringers overnight. The Fifth Circuit heard argument in early June 2026, and a decision is now awaited.
What’s at Stake
The stakes run in both directions, which may be why this has stayed unresolved for so long. If the server test is wrong, photographers and other creators get real recourse against sites that put their work on the page without permission, payment, or credit. The reader’s experience is the same whether the image is stored locally or pulled in from elsewhere, so why should that hidden difference decide who is liable?
But if the server test goes, the exposure for the ordinary web is enormous. Embedding is not a fringe practice; it is how the web is built. Every article that embeds a tweet, every blog that pulls in a video, every aggregator that surfaces third-party content becomes a potential direct infringer, and statutory damages reach $150,000 per work for willful infringement. A handful of embedded images could sink a small publisher. There is also a real question of where responsibility belongs. The better-aimed defendant, the scholars argue, is the party that actually put the work online, not the one that pointed to it, and contributory and vicarious liability already exist to reach those who facilitate infringement without directly causing it.
For now, my practical advice has not changed since 2022. Because a copyright plaintiff can often choose where to sue, and because the trial courts outside the Ninth Circuit are increasingly hostile to the server test, the only safe assumption is that embedding can expose you to a display-right claim, wherever you are. The Supreme Court has already passed on the question once, denying review in McGucken. Congress, which wrote the current Copyright Act in 1976 and has amended it many times since, has not touched the display right to account for a technology that did not exist then.
So it falls to the Fifth Circuit. Its decision in Emmerich will be the first appellate ruling on the server test from outside the Ninth Circuit. Affirm, and the appellate consensus holds while the pressure for Supreme Court review keeps building. Reverse, and there is finally a genuine circuit split, the one I flagged as the trigger for Supreme Court review back in 2022, and the question of who displays an embedded image becomes very hard for the Justices to keep avoiding.
Stay tuned.