Judge Rules News Agencies Can’t Use Twitter Photos Without Permission
In a landmark social media law case, a Federal judge in New York ruled this week that news agencies can’t publish photos found on Twitter without the photographer’s permission. Neither the fact that the photos were certainly newsworthy – they portrayed images of the devastating earthquake in Haiti – nor that Twitter allows anyone to reproduce the photos (via re-Tweeting) were enough to overcome the photographer’s rights under copyright law. In January 2010, Daniel Morel posted his photos of the earthquake’s aftermath on Twitter through the TwitPic application. The photos were picked up by Agence France-Press (AFP) and were eventually published in the Washington Post through Getty Images. Morel sued AFP, the Post, and Getty. This week’s ruling concerned AFP and the Post. AFP took the position that the images were freely available for use because the photographer had posted them on Twitter. After all, anyone who uses Twitter knows that photos are re-Tweeted (RT’d, as the kids say) all the time. While acknowledging that RTs are a part of the Twitter landscape, the judge was not willing to extend the same right to copy images outside of Twitter itself. If the court had found in favor of AFP, the result would have been that any photos posted to Twitter would essentially be stripped of all copyright protection. From the Court’s ruling:
Because Morel uploaded the Photos-at-Issue through TwitPic, the Twitter TOS [Terms of Service] apply to the Photos-at-Issue. As relevant here, the Twitter TOS provide the following, in a section entitled “Your Rights.”
You retain your rights to any Content you submit, post or display on or through the Services…
Tip[:] This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same. But what’s yours is yours – you own your content.
While Twitter’s TOS does include language to the effect that by posting a photo on Twitter, you are granting a limited copyright license for the image to be used in various ways, the Court stated, “The Court need not fix the precise scope of any license created by the Twitter TOS in order to resolve the dispute before it. Rather, it suffices to say that based on the evidence presented to the Court the Twitter TOS do not provide AFP with an excuse for its conduct in this case…[E]ven assuming there may be some license to third parties granted by the Twitter TOS—for example, a license to “re-tweet” content posted on Twitter—this function of Twitter simply does not necessarily require the license urged by AFP or manifest an intent to grant such an unrestricted license.” AFP and the Post did score an important victory, however. Morel had argued that their infringement of his copyright in the photos meant that he should be paid damages for each time the images were reproduced in print or online – for every single copy. This would have resulted in “tens or hundreds of millions of dollars of damages.” The judge disagreed, finding it “unlikely that Congress intended the statutory damages provision of the Copyright Act to create such a result…The Court concludes that any awards of statutory damages against AFP or Getty may not be multiplied based on the number of infringers with whom AFP or Getty is jointly and severally liable. Rather, AFP and Getty are, at most, each liable for a single statutory damages award per work infringed.”