A U.S. District Court judge for the Southern District of New York has ruled that the French wire service Agence France Presse (AFP), Getty images, and The Washington Post infringed the copyright of a photographer by using pictures he took in the aftermath of an earthquake in Haiti and posted on Twitter.
The case stems from photos that the photojournalist Daniel Morel posted to his Twitter account through a TwitPic account. AFP shared the images with Getty, and The Post acquired them independently.
Morel attempted to correct the attribution of the photos (some were credited to another person) and to halt their distribution by third parties. After receiving cease-and-desist letters from Morel’s attorney, AFP filed a declaratory relief action in which it argued that it had not infringed Morel’s copyrights. In response, Morel filed counterclaims, adding Getty and The Post as parties, in which it alleged that the news services willfully infringed his copyrights. Specifically, he claimed the defendants violated his exclusive rights of reproduction, public display, and distribution.
The defendants did not dispute Morel’s copyright in the photos, but relied upon a novel affirmative defense to Morel’s allegations of copyright infringement, namely, that by posting the photos on Twitter, Morel granted them a license.
The terms of service for TwitPic, which Morel used to upload his photos, state that “By uploading your photos to TwitPic you give TwitPic permission to use or distribute your photos on TwitPic.com or affiliated sites.” The terms also provide that respective owners have the copyright to all images. Similarly, Twitter’s terms provide that users “grant us a worldwide, non-exclusive, royalty-free license” and that users retain their rights in the content they submit.
AFP argued that it was a third-party beneficiary to the Twitter terms and, therefore, insulated from liability. However, U.S. District Court Judge Alison J. Nathan found that AFP’s argument had a “fatal flaw”: the company “fails to recognize that even if some re-uses of content posted on Twitter may be permissible, this does not necessarily require a general license to use this content as AFP has.” The court further noted that AFP wholly ignored those portions of the Twitter terms that were directly contrary to its position, particularly those that granted users the rights to retain their content. These statements would have no meaning if Twitter allowed third parties to remove the content from Twitter and license it to others without the consent of the copyright holder, the court said.
The language of Twitter’s terms of service “as a whole” demonstrates that no such license was intended, Judge Nathan concluded. “A license for one use does not equate to a license for all uses.”
Judge Nathan granted summary judgment to Morel and found the defendants AFP and The Post liable for direct copyright infringement.
However, turning to the issue of damages, Judge Nathan refused to grant Morel’s motion for summary judgment, as there were genuine issues of fact as to whether the defendants had acted willfully. The parties’ motions for summary judgment on the issues of vicarious and contributory liability were also denied.
With respect to the damages issues, the court rejected Morel’s argument that he was entitled to a statutory award in the tens or hundreds of millions of dollars, because AFP and Getty were jointly and severally liable for a separate award of statutory damages for each distinct subscriber to their services that ran the photos. The intent of the Copyright Act is “to constrain the award of statutory damages to a single award per work, rather than allowing a multiplication of damages based on the number of infringements,” Judge Nathan wrote, adding that Morel’s proposed interpretation “would lead to absurd results.” Accordingly, the scope of damages remains to be determined.
To read the court’s order in Agence France Presse v. Morel, click here.
Why it matters: Twitter users can breathe a sigh of relief following Judge Nathan’s decision, which recognizes users’ rights to their posted content. However, this may be a narrow ruling, as Nathan noted that an open question remains as to whether a copyright violation occurs where a third party retweets content posted on Twitter. The issue will likely play out in the near future, as the practice of retweeting increases in popularity for both individuals and companies.