The Server Test Survives: Hunley v. Instagram and the Public Display Right for Embedded Images

In Hunley v. Instagram (9th Cir. 2023), the Ninth Circuit reaffirmed the Perfect 10 'server test,' holding that embedding an Instagram photo does not 'display a copy' and so cannot anchor direct or secondary infringement liability.

In Hunley v. Instagram, LLC, No. 22-15293 (9th Cir. July 17, 2023), the United States Court of Appeals for the Ninth Circuit confronted one of the most consequential questions in digital copyright: whether a website that embeds a photograph hosted on another company’s servers thereby “displays” the work within the meaning of the Copyright Act. A unanimous panel — Circuit Judges Jay S. Bybee (writing) and Patrick J. Bumatay, joined by District Judge Richard D. Bennett of the District of Maryland, sitting by designation — answered no. Affirming the dismissal of a putative class action brought by photographers Alexis Hunley and Matthew Scott Brauer against Instagram, the court reaffirmed the “server test” first announced in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), and held that embedding does not infringe the exclusive right of public display.

At a glance

Case: Hunley v. Instagram, LLC, No. 22-15293 (9th Cir.)
Decided: July 17, 2023 (on appeal from the U.S. District Court for the Northern District of California)
Holding: Under Perfect 10’s server test, an embedding website that does not store a fixed copy of an image on its own servers does not “display a copy” of the work; absent direct infringement by the embedding sites, Instagram cannot be secondarily liable for permitting embedding.
Status: Affirmed (dismissal under Rule 12(b)(6)). The panel held it was bound by Perfect 10 and that only the en banc court or the Supreme Court could overrule it; the photographers sought rehearing en banc.

Posture: a deliberate test of binding circuit precedent

The dispute arose from a familiar new-media practice. Hunley and Brauer posted photographs to public Instagram accounts — Brauer’s 2016 image of then-candidate Hillary Clinton, Hunley’s 2020 photograph from Black Lives Matter protests. Time and BuzzFeed embedded those posts in online articles. Embedding does not copy the underlying image file onto the publisher’s server; instead, the article page contains HTML instructions that direct the reader’s browser to retrieve and render the image directly from Instagram’s servers. The image appears seamlessly within the article, but the bits travel from Instagram, not from Time or BuzzFeed.

Rather than sue the publishers, the plaintiffs sued Instagram on a theory of secondary liability, alleging that Instagram’s embedding tools facilitated third parties’ direct infringement of the plaintiffs’ exclusive display right. That framing made the case a clean vehicle: secondary liability requires an underlying act of direct infringement. If embedding is not a direct infringement under the server test, the secondary claim collapses at the threshold. The district court dismissed under Rule 12(b)(6), and the photographers appealed — candidly aiming to dislodge Perfect 10 itself.

Reasoning: “display a copy” requires a stored copy

The Copyright Act grants owners the exclusive right “to display the copyrighted work publicly.” 17 U.S.C. § 106(5). The statute defines “display” as “to show a copy of it,” and a “copy” is a material object in which a work is “fixed.” Judge Bybee’s opinion fastened on that statutory chain. Because the embedding websites never stored a fixed copy of the photographs — the copies remained on Instagram’s servers — those sites did not “show a copy” and therefore did not exercise the display right. That, in essence, is the server test: liability for direct infringement of the display right turns on possession of a fixed copy on a server within the defendant’s control.

Crucially, the panel held it was bound. Perfect 10 is circuit precedent, and a three-judge panel may depart from it only when an intervening, higher authority is “clearly irreconcilable” with it. The plaintiffs’ arguments, the court explained, were largely invitations to reweigh Perfect 10’s statutory analysis — a task reserved for the en banc court.

The court addressed the plaintiffs’ three principal contentions in turn. First, they argued that Perfect 10 misread the display right when it adopted the server rule. The panel responded that Perfect 10 “relied on the ‘plain language’ of the Copyright Act” and on circuit precedent concerning when a copy is “fixed,” not on policy improvisation. Second, the plaintiffs urged that the server test should be cabined to search engines — the Perfect 10 context, where Google’s image search produced inline thumbnails and full-size embeds. The panel rejected any such limitation: nothing in Perfect 10’s reasoning depended on the “unique context of a search engine,” and the rule speaks to the mechanics of display generally.

Third, and most substantively, the plaintiffs invoked American Broadcasting Cos. v. Aereo, Inc. (2014), in which the Supreme Court held that Aereo’s antenna-and-streaming system performed broadcasters’ works publicly despite its technological indirection. The plaintiffs read Aereo to reject formalistic, technology-dependent distinctions of exactly the kind the server test embodies. The panel distinguished Aereo on two grounds. As a textual matter, Aereo construed the public performance right, whose statutory definition — “to transmit or otherwise communicate a performance” — contains no requirement of showing a “copy,” whereas the display right is expressly tethered to a copy. As a doctrinal matter, Aereo is not “clearly irreconcilable” with Perfect 10; the Supreme Court itself framed its holding narrowly and cautioned against disturbing settled expectations in new technologies. The server test therefore survived.

Doctrinal context: Perfect 10, Breitbart, and an unresolved tension

Hunley matters because it entrenches a doctrine that is far from universally accepted. The server test has long drawn criticism that it imports a “volitional possession” requirement absent from the statute: the display right asks whether a defendant shows a copy publicly, not whether the defendant stores one. The most prominent rejection came from the Southern District of New York in Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585 (S.D.N.Y. 2018), where the court held that news outlets embedding a tweet displayed the underlying photograph regardless of where the file was hosted. Several other district courts in the Second Circuit have followed Goldman’s skepticism.

The result is a meaningful geographic fracture. Within the Ninth Circuit, Hunley now makes the server test binding appellate law; publishers and platforms in California and across the western states can embed third-party, server-hosted images with substantially reduced direct-infringement exposure. In New York — the center of American media and publishing — the prevailing district-court view runs the other way, though no court of appeals has squarely adopted Goldman. Until the Second Circuit speaks or the Supreme Court resolves the conflict, the lawfulness of an identical embed can turn on the federal forum in which suit is filed.

Open questions

Will the split mature into a circuit conflict ripe for the Supreme Court? No federal court of appeals has yet repudiated the server test. A Second Circuit decision endorsing Goldman would create the kind of square split that often invites certiorari.
Does the server test reach beyond static images? Hunley concerned photographs and the display right. Its logic is in tension with Aereo in the performance context, leaving embedded video and live streams less settled.
How far does “control” of a server extend? The test keys to copies on servers within the defendant’s control. Caching, content-delivery networks, and AI systems that ingest and re-serve images complicate the inquiry the opinion did not need to resolve.
What is left of secondary liability? By disposing of the case at the direct-infringement threshold, the panel never reached whether Instagram’s conduct could otherwise support contributory or vicarious claims on different facts.

Implications

For platforms and publishers in the Ninth Circuit: Embedding server-hosted third-party images carries materially lower direct-infringement risk; the storage location of the file is the doctrinal pivot.
For photographers and rights holders: The display right offers thinner protection against embedding in the West; licensing terms, platform agreements, and takedown mechanics become the practical levers rather than display-right litigation.
For forum strategy: Plaintiffs with a choice of venue have strong incentives to sue in the Second Circuit, where Goldman’s reasoning prevails; defendants will press for Ninth Circuit fora.
For emerging technology: The opinion’s “fixed copy” framing will be invoked — and contested — as courts confront generative AI outputs, dynamic embeds, and streaming, where the line between showing and transmitting is blurrier than a static photo.

Frequently asked questions

What is the “server test”? It is the rule, originating in Perfect 10 v. Amazon.com (9th Cir. 2007), that a website directly infringes the public display right only if it stores a fixed copy of the image on a server it controls. A site that merely embeds — directing a browser to fetch the image from someone else’s server — has not “shown a copy” and so has not displayed the work.

Did Hunley change the law? No. It reaffirmed binding Ninth Circuit precedent. The panel held it could not overrule Perfect 10 and that Aereo did not require a different result. The significance lies in confirming the test’s vitality and clarifying that it is not limited to search engines.

Is embedding now safe everywhere in the United States? No. Hunley binds the Ninth Circuit, but courts in the Second Circuit, following Goldman v. Breitbart, have rejected the server test. The same embed may be treated differently depending on the forum until the conflict is resolved by a higher court.