by Dennis Crouch
McGucken v. Valnet, Inc., No. 24-1040 (Supreme Court 2025)
Photographer Elliot McGucken has petitioned the Supreme Court to review a Ninth Circuit decision involving what has become known as the "Server Test" in copyright -- law has permitted websites to avoid copyright infringement by embedding images hosted on third-party servers rather than storing and hosting them directly. Another name for this may be the "Embedding Liability Shield." Embedded images and video can appear seamlessly on a website even though the media is not served by the site's servers.
In McGucken v. Valnet, Inc., the basic setup is that Valnet embedded on its thetravel.com site a number of links to McGucken's Instagram posts. To be clear, the Instagram posts are authorized by the photographer, but he argues that others should not be permitted to embed his Instagram posts into their sites. The Ninth Circuit sided with Valnet, but McGucken has now petitioned the Supreme Court for review.