After a prolonged period in the United States Court system, two media companies have been ordered to pay $1.2 million in damages to a freelance photojournalist, Mr Daniel Morel, for their unauthorised use of photographs that Mr Morel posted on his Twitter account. InAgence France-Presse v Morel, a seven-member jury in the New York Federal Court found that media giants Agence France-Presse (AFP) and Getty Images (Getty) wilfully violated the United States Copyright Act when they used photos Mr Morel took in his native Haiti after the 2010 earthquake. The decision is a significant development regarding copyright ownership and, although hailing from a different jurisdiction, it serves as a useful reminder of the care which must be taken when reproducing social media content.

Background

In 2010, freelance photographer Mr Morel posted 13 images taken of the aftermath of the Haiti earthquake disaster on his Twitter account. These photos were re-tweeted shortly thereafter by another individual, who indicated his images of the disaster were ‘exclusive’.

AFP proceeded to upload these re-tweeted images for distribution. They were then forwarded to Getty and made available to their customers. AFP and Getty did not conduct the standard due diligence to verify the true owner of the works. When it was made known that Mr Morel was the photographer, AFP and Getty continued to distribute the photos with the correct attribution in some circumstances only.

Issues

Mr Morel asserted that he owned the copyright in all 13 images. AFP responded by alleging commercial defamation and sought a declaration that AFP had not infringed Mr Morel’s copyright. Mr Morel in turn brought a counter-claim joining multiple media organisations. He asserted his exclusive rights to reproduce, display publicly, and distribute the images in question, and a wilful breach of his copyright by the media outlets.

Several news outlets previously settled with Mr Morel.  AFP and Getty contested the claims.

Court Proceedings

In three separate proceedings, the following questions were determined:

  1. Did Twitter’s terms of service grant a universal licence to third parties for broad commercial re-use of uploaded content?

AFP argued that by posting the images on Twitter, Mr Morel had granted to AFP a licence to re-use the images and distribute them commercially across various media outlets. In support of its argument, AFP relied on sections of Twitter’s Terms of Service (Terms) and Guidelines for Third Party Use of Tweets in Broadcast or Other Offline Media. The latter included that Twitter “welcome[s] and encourage[s] the use of Twitter in broadcast”.

In finding that Mr Morel’s copyright was infringed the Court rejected AFP’s argument and, in doing so, relied on sections of the Terms which consistently identified the rights holder as the individual, for instance:

  • “You retain your rights to any Content you submit, post or display”; and
  • “What’s yours is yours – you own your content”.

It was held that the Terms constitute an agreement between the Twitter-user and Twitter. This did not extend to granting a licence to third parties. Further, the Court determined a fundamental distinction between the re-use of content within the social media platform itself, such as ‘re-tweeting’, and commercial re-use by third parties to the world at large.

  1. Can a plaintiff alleging copyright infringement elect to pursue separate theories of individual liability against otherwise jointly liable defendants?

Mr Morel attempted to claim one award per work from each defendant individually, and thus recover double the statutory damages. The Federal court rejected Mr Morel’s attempts, holding that the relevant US Copyright Act authorises a single award of statutory damages per work for all infringements in a lawsuit against jointly and severally liable infringers.

  1. Was the infringement wilful?

A federal jury was left to determine this third and final question. It answered emphatically in the positive, and awarded the maximum statutory penalty of $1.2 million available to Mr Morel under the United StatesCopyright Act. The jury rejected claims by AFP and Getty that any incorrect attributions to the owner of the works were a mistake, and that they were the victim of deceptive conduct by the initial ‘re-tweeter’. Significantly, efforts by the media outlets to correct the attribution after the fact in some (but not all) circumstances did not afford a reduction in the final penalty.

Discussion

News reporting is increasingly turning to social media to engage with content owned and uploaded by professionals and everyday users. This decision is amongst the first anywhere to address the commercial reproduction of images made available by individuals on social media.  It serves as a reminder that media outlets should conduct appropriate due diligence prior to the publication and attribution of works made available by individuals on social media.

In Australia, section 42 of the Copyright Act 1968 (Cth) provides that a fair dealing with a literary, dramatic, musical or artistic work does not constitute copyright infringement if it is for the purposes of reporting news and the copyright owner is sufficiently acknowledged.  The degree to which the Australian fair dealing provisions extend to the commercial reproduction of social media content is not settled.  This case provides an indication of the way such conduct may be treated under Australian law, particularly in circumstances where the copyright owner is not sufficiently acknowledged.