Tom Brady. What a Decade of Litigation Teaches Every Business About Copyright
In 2016, a guy named Justin Goldman snapped a photo of some random quarterback named Tom Brady on a sidewalk in East Hampton and posted it to Snapchat. (As a lifelong suffering Miami Dolphins fan, I will not publicly acknowledge how great Brady was). It leaked onto Twitter. A pile of media outlets, including Vox Media, ran it. Some of them by "embedded" the tweet, which is the internet's favorite way of using someone else's content while telling yourself you never actually touched it. That is because technically the image is still sitting on someone else's server. A federal court blew that theory up in 2018: embedding a photo you don't own can absolutely be infringement, server or no server. Vox settled with Goldman rather than find out how expensive that lesson gets on appeal.
Ten years, one landmark ruling on how the internet legally works, and one settlement later, Goldman was back in front of Judge Koeltl in the Southern District of New York this June, arguing Vox breached that old settlement because a post with the photo was still sitting online, un-removed. The judge said no: Leaving something alone that's already up isn't a new act of anything, Goldman never said which part of the settlement Vox supposedly violated, and he'd sat on the complaint long enough that the delay worked against him too. Vox won this round.
If your reaction to "this photo is still generating legal fees in year ten" is a small, cold feeling in your stomach — good. That's the correct reaction, and it's more useful to your business than anything else in this post.
What Didn't Happen Here
Nobody ruled that grabbing photos off the internet is fine now. Don’t do that (unless you want to donate to the Kirby Phillips treat fund). Nobody ruled embedding is safe. The only thing decided in June is that this specific claim, filed this way, this late, didn't hold up. That distinction is the entire ballgame, and it's where most businesses get copyright exactly backwards — usually in one of two opposite directions.
Direction One: “It Was Just Sitting There”
Someone in your marketing department needs to hear this today:
a photo being publicly visible on the internet is not the same thing as it being licensed to you.
Not Google Images, not a competitor's Instagram, not a stock photo site's watermark you cropped out, not a screenshot of somebody's TikTok. "It was right there, free to grab" is not a defense. It's closer to a confession with a timestamp attached.
That's the whole reason there was a Goldman-Vox settlement to breach in the first place. Vox, a real, sophisticated media company with actual lawyers on staff, got this wrong once already, and it cost them. If it can happen to a newsroom that publishes for a living, it can happen to whoever built your last landing page, your last pitch deck, or your last "trending this week" Instagram carousel.
Direction Two: Setting Your Hair on Fire
The part nobody tells you when they're busy scaring you straight is that copyright is not a strict-liability minefield where one bad image ends the company. There are real, unglamorous, entirely legitimate defenses that win cases — statute of limitations, laches (the doctrine of "you sat on this too long, so pipe down"), the gap between a completed act of infringement years ago and an ongoing one today, fair use, licenses your predecessor forgot to file away. Vox just won on a combination of exactly these grounds, on a photo they'd already lost on once.
The lesson isn't "copyright doesn't really apply to me." It's also not "we're doomed the moment a demand letter shows up." The facts, the timing, and the specific legal theory being asserted against you matter enormously, and a claim that reads like a death sentence in a cease-and-desist letter frequently falls apart once someone actually looks at it closely. Panic is not a legal strategy. Neither is pretending the letter will go away on its own.
The Actual Point
The difference between "we're fine" and "we owe somebody a settlement check" in cases like this almost always comes down to details a non-lawyer has no particular reason to know: what license, if any, came attached to the image; whether a claim against you is even timely; whether what happened counts as a new infringing act or an old one nobody sued over while they had the chance. That's not a five-minute internet search. That's a phone call, and it's a much better phone call to make before the letter arrives than after.
So: don't grab the image just because it's sitting there unattended. Don't panic if one shows up in your inbox with a dollar figure attached. And find someone who reads copyright opinions for a hobby before you do either.
Yes, that can be me.
Jon is an attorney at Brown, Hay & Stephens. The statements on this website are his, not his firm's. Nothing here is legal advice, and he isn't your attorney until you've actually hired him. If you've got a specific image, a specific letter, or a specific "we've been doing this for years, it's probably fine, right?" situation — reach out. Jonathan L.A. Phillips, jphillips@bhslaw.com, (309) 643-6518.