Here is the next case that illustrates the potential pitfalls when dealing with social media:
This recent US copyright decision involving Agence France Presse (AFP) and photographer Daniel Morel dealt with the rights of a news publisher to publish images posted to Twitter.
Mr. Morel is a photojournalist who took a number of images of the 2010 earthquake in Haiti. He then posted those images to Twitter. Those images were picked up by AFP who “licensed” the images on to Getty Images.
When Morel complained, steps were taken to have the images removed from the AFP / Getty system. But through series of mixups (of the kind that would be familiar to anyone dealing with information technology and complex organizations such as AFP and Getty Images), the pictures were not removed and were picked up and published by The Washington Post under their agreement with AFP/Getty.
The court ultimately had to decide whether Mr. Morel - the photographer - had granted a kind of license to AFP by posting his images to Twitter. This required an analysis of the Twitter Terms of Service. The court decided no, the Twitter Terms of Service do not grant such a license. The court stated 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.” Put another way, a copyright owner who posts content to Twitter is clearly giving up some rights to that content - the right, for example, to re-tweet, which is a fundamental part of Twitter and is contemplated (even encouraged) by Twitter’s Terms of Service. However, merely by posting to Twitter, that copyright owner is not giving others an unrestrained right or license to remove the content, copy it and redistribute it commercially.
The court says “…the Twitter TOS were not intended to confer a benefit on the world-at-large to remove content from Twitter and commercially distribute it…” This is an important reminder.
In the final analysis (and that is 58 pages of analysis if you want to read the judgement) AFP and The Washington Post were liable for copyright infringement for use of Morel’s images.
Lessons for business:
- This case confirms that any re-use of content from Twitter - and by extension, other social media streams - should be handled carefully.
- Re-tweets are clearly contemplated as being within the scope of permitted uses, but copying and republishing for commercial purposes clearly is not.
- Many situations will fall somewhere in the middle between those two ends of the spectrum. Before using or re-using content for commercial purposes, take time to review the specific situation, including the applicable social media terms of service. Before posting your own content to Twitter, be aware that the Twitter terms do contemplate certain re-uses (the scope of which is difficult to define precisely). Once it’s posted, it’s hard to stuff the genie back in the bottle
The case is Agence France Presse v. Morel.