Gannett Co. Inc. has joined a growing list of publishers that have settled with a photographer who sued them for copyright infringement after they embedded a candid photo of NFL quarterback Tom Brady in their Twitter posts.

The March 27 settlement leaves Verizon Media Group, Time Inc., and Heavy Inc. as the remaining defendants in Justin Goldman’s 2017 suit against 10 media outlets in the U.S. District Court for the Southern District of New York. Goldman’s photo showed the New England Patriots star walking in the Hamptons region of Long Island with a caption suggesting he was there to help the Boston Celtics recruit basketball star Kevin Durant.

The case represents part of a broader turf war over copyright liability in cases where publishers never control or download the infringing material itself. A judge in this case has held media companies can infringe by embedding tweets without ever possessing the photo itself, rejecting a California federal appeals court’s interpretation of copyright law.

Boston newspaper publishers Herald Media Inc. and Boston Globe Media Partners LLC; New England Sports Network Inc.; Vox Media Inc.; and Breitbart News Network LLC all have settled with Goldman. Media conglomerate Advance Media Inc., sued by Goldman in a separate Southern District lawsuit, also has settled.

Server Liability

Five of the sporadic settlements followed U.S. District Judge Katherine B. Forrest’s February 2018 ruling that the publishers couldn’t evade liability just because the embedded-tweet photo was never stored on their servers. The ruling rejected the U.S. Court of Appeals for the Ninth Circuit’s 2007 decision holding the opposite.

Heavy appealed the judge’s partial summary judgment to the U.S. Court of Appeals for the Second Circuit, which declined to take up the question until the case is decided. If the Second Circuit upholds Forrest’s ruling, it would create a split on the question between the nation’s two busiest copyright circuits and media hubs.

Forrest’s ruling noted the outlets have “a very serious and strong fair use defense,” while rejecting the Ninth Circuit’s conclusion regarding servers in Perfect 10 v. Google Inc. Numerous media outlets, photographer organizations, and intellectual property rights groups have weighed in on both sides of the case with amicus briefs.

A magistrate judge on March 15 set a May 1 deadline for fact discovery, a July 10 deadline for expert discovery, and a September deadline for the end of briefing on the publishers’ forthcoming bids for summary judgment.

The case was reassigned to U.S. District Judge Alison J. Nathan in September 2018. Forrest has retired from the bench. Yahoo was purchased by Verizon Communications shortly after the suit and, along with fellow acquisition AOL, became part of Oath Inc., later renamed Verizon Media.

Kenneth P. Norwick of Norwick & Schad, who represents Goldman, said he couldn’t comment on details of the settlement.

A Ballard Spahr LLP attorney that represented Gannett didn’t immediately return a request for comment. Counsel for remaining defendants also did not immediately return a request for comment.

The case is Goldman v. Breitbart News Network, LLC, S.D.N.Y., No. 17-3144, Stipulation of Voluntary Dismissal 3/27/19