Social media sites allow their users to easily upload images online, and using a digital photograph posted on a social media site can be done by a few clicks. However, an image posted on a social media site is more likely than not protected by copyright, and thus cannot be reproduced without permission of the copyright owner.

Here is a recent interesting case on the topic.

Daniel Morel, a professional photographer, was in the city of Port au Prince in Haiti on January 12, 2010, the day of the earthquake. He took numerous photographs of the disaster, and was able to post them the same day from his Twitter account, using Twitpic, one of Twitter’s third-party applications. Twitpic’s Terms of Use provided then, and still do, that users give Twitpic permission to use or distribute their photos on Twitpic.com or on affiliated sites, but that the owners of the uploaded images retained their copyright.

Not long after the images were posted, they were allegedly reposted to the Twitter account of Lisandro Suero, who allegedly tweeted that he took these photographs and that they were available for licensing. The Agence France Presse (AFP) then used them and also transmitted them to Getty, which holds the exclusive rights to market AFP’s images in North America. The photographs were subsequently licensed to several newspapers and networks.

The AFP sought a declaratory judgment that it did not infringe Daniel Morel’s copyrights in these photographs. Morel counterclaimed alleging, inter alia, copyright violation. Morel brought similar third-party claims against Getty.

The AFP and Getty filed a motion to dismiss Morel’s counterclaim, which was denied in part in January 2011 by the Southern District of New York, (Agence Fr. Presse v. Morel, 769 F. Supp. 2d 295, (S.D.N.Y. 2011).

Judge Alison J. Nathan of the Southern District of New York (SDNY) ruled last week that the AFP and other news organizations did not have the right to use these photographs without Morel’s permission.

License or Not?

A license is an affirmative defense to a copyright claim, and the AFP was arguing that when Morel posted his photos on Twitter through TwitPic, he subjected them to the terms of service governing content posted to these two websites, and that these terms of service provided the AFP with a license.

The Twitpic login page warned users that it operated under Twitter’s Terms of Service, which provided that users grant Twitter “a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute…[content uploaded on the site] in any and all media or distribution methods.” Judge Pauley from the SDNY had concluded in 2011 that the express language of the Twitter and TwitPic TOS did not provide an express license that covered AFP.

Judge Nathan noted last week that the AFP “wholly ignore[d] those portions of the Twitter TOS that are directly contrary to its position, particularly those portions stating that “[y]ou retain your rights to any Content you submit, post or display” and “what’s yours is yours – you own your content,””and noting that “[t]hese statements would have no meaning if the Twitter TOS allowed third parties to remove the content from Twitter and license it to others without the consent of the copyright holder.” She also reasoned that, because Twitter’s Guidelines state several times that content should not be disassociated from the Tweets in which they occur, AFP’s removal from Twitter and the commercial licensing of Morel’s photos-“is not akin to the rebroadcast of a Tweet.”

RT and Copyright

The AFP had argued that either its conduct had been licensed under the TOS, or that “the uncountable number of daily ‘re-tweets’ on Twitter and in the media where Twitter/TwitPic posts are copied, reprinted, quoted, and rebroadcast by third parties, all could constitute copyright infringements.” Judge Nathan was not convinced by this argument, calling it a “false dichotomy” and stating that “a license for one use does not equate to a license for all uses” and she concluded that the AFP was not entitled to summary judgment on the license issue.

Authors do not lose their intellectual property rights when uploading their works on social media sites.

Agence France Presse v. Morel, U.S. District Court for the Southern District of New York, No. 10-02730.