© Henry Drewal
Haitian photographer Daniel Morel recently won a preliminary victory in his suit against AFP for the unauthorized use of his exclusive Haiti earthquake images last year. A U.S. District Court in New York rejected AFP’s argument that by uploading his images, Morel automatically made them free for the taking under Twitter’s terms of service. (See PDNOnline, "Insult to Injury: AFP Sues Photographer it Stole From").
The case underscores the risks and complications of distributing intellectual property on social networks, according to a recent article in the New York Law Journal. The purpose of social networks is to encourage users to share and re-distribute content widely and often.
But the recent pre-trial decision in the Morel case defined some limits on Twitter, at least: Content uploaded there can be re-distributed freely inside the Twitter universe, among Twitter users, the article explains. But the terms of service prohibit users from removing content from Twitter and distributing it elsewhere—such as through newspapers, TV, or Web sites unconnected to Twitter.
Every social network has its own terms of service, though, so the lesson for photographers is: Make sure you understand those terms, which tell you what you are automatically licensing (read: giving away) and to whom simply by uploading your images or other intellectual property.
Morel used Twitter on January 12, 2010 to get the word out that he had exclusive photos to license. He posted the pictures through a third-party application called TwitPic, which is subject to the Twitter terms of service.
The images were promptly stolen and re-distributed on Twitpic by another user named Lisandro Suero, who isn’t a photographer. Suero also offered to license the images. But news organizations knew that Morel was the original source, and many—including CBS and CNN—contacted him multiple times for rights to license the images. AFP also recognized the images as Morel’s, and one AFP editor sent him an e-mail asking, “Do you have pictures?”
Morel apparently didn’t respond quickly enough, so AFP downloaded his images from the Suero Twitpic page and began distributing the images with the credit line “AFP/Getty/ Lisandro Suero.” Getty (AFP’s distribution partner) then licensed Morel’s photos to various news agencies, including CBS and CNN. Both networks are also defendants in the case.
Afterwards, AFP employees continued to e-mail Morel to talk about his pictures, which Morel cites as evidence that AFP knew they didn’t belong to Suero. He sued for copyright infringement.
AFP responded by filing a motion to have the claim thrown out, arguing that by uploading his images to Twitter, Morel was granting all Twitter users an implied license to redistribute the images. Morel said he never intended to give away his copyright.
New York District Judge William H. Pauley III rejected AFP’s argument as a misreading of Twitter’s terms of service. Pauley noted that the terms of service specifically give Twitter and its partners and affiliates the right to use, copy, reproduce, publish and distribute content uploaded to Twitter.
AFP and the other defendants did not claim they are partners, affiliates, or sub-licensees of Twitpic, Pauley noted; they were merely users of the service. Moreover, the provisions of Twitter that encourage the broad re-use of content posted on Twitter “does not clearly confer a right on others [besides Twitter and its affiliates] to re-use copyrighted postings,” Pauley wrote in his decision.
AFP and the other defendants “do not meet their burden to establish that they had a license to use Morel’s photographs,” Pauley concluded.
In other words, the Pauley decision carved out two separate universes by making a distinction between the broad content usage rights of Twitter (the corporate entity) and the more limited rights of regular Twitter users.
It’s probably bad enough for copyright owners that Twitter effectively becomes a co-owner of everything users upload. But at least it’s not a loophole through which any big media company or advertiser can reach in and grab your pictures for free.
Still, the Morel case isn’t fully resolved. Pauley’s preliminary ruling against AFP still left the door open for AFP to re-argue the meaning of the terms of service in court before a jury, and raise other defenses against claims that it violated Morel’s copyright.