On January 12, 2010, Daniel Morel, a photojournalist, captured the aftermath of a devastating natural disaster, the earthquake in Haiti. Morel then posted his photos to Twitter via TwitPic where another user, Lisandro Seuro, retweeted the images. That same day, Agence France Presse (AFP) scoured the Internet for pictures of Haiti to distribute through its international wire and databank for subscribers to access. AFP distributed a number of Morel’s photos to Getty Images, which then published the photos to its customer-facing website, crediting Seuro. The next day, AFP caught the attribution mistake and sent out correction captions to identify Morel as the photographer, but Morel’s images credited to Suero remained on Getty’s system. 

The following day, Getty received a Digital Millennium Copyright Act (DMCA) takedown notice from Corbis, Morel’s worldwide licensing agent. Although Getty removed all photos attributed to Morel, it did not remove the images attributed to Suero until a week or two later when Corbis contacted Getty once again. At this point, both AFP and Getty were well aware of Morel’s copyright claims in his images.

One of Getty’s subscribers, the Washington Post, received from Getty and published on its website some of Morel’s images—three credited to Suero and one credited to Morel.  Approximately two months after the Haiti earthquake, Morel’s attorney sent the Post a letter and an email regarding Morels photographs, but the Post denied having a record of either. A few months later, Getty notified a Post employee that the photos were subject to a copyright dispute and should be removed. Around the same time, Morel’s attorney sent the Post another letter but this time directed it to the Post’s legal department. Over a year after Morel’s attorney sent the Post the initial letter regarding Morel’s images, the Post finally removed the images from its website.

In March 2010, AFP filed suit against Morel in New York seeking a declaratory judgment of non-infringement of Morel’s copyrights. Morel counterclaimed and moved for summary judgment alleging that AFP, Getty, and the Post infringed his copyrights and violated the DMCA.

In his infringement claim, Morel accused AFP and Getty of violating his exclusive statutory rights to reproduce, publicly display, and distribute his copyrighted works. AFP argued that by posting his photos on Twitter, Morel had granted it a license. Pointing to Twitter’s Terms of Service (TOS), AFP reasoned that it is a third-party beneficiary of the license between Morel and Twitter. District Judge Alison Nathan disagreed.

Twitter’s TOS state that “by uploading your photos to TwitPic you give TwitPic permission to use or distribute your photos on TwitPic.com or affiliated sites. All images uploaded are copyright © their respective owners.” AFP argued that the following language in Twitter’s TOS established its third-party beneficiary status: “What you say on Twitter may be viewed all around the world instantly. You are what you Tweet!” and “We encourage and permit broad re-uses of Content.” Judge Nathan, however, ruled that under California law, Twitter’s TOS did not establish a third-party beneficiary relationship because there was no evidence of Twitter’s clear intent to grant AFP a license. The Judge 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 [Morel’s images] as AFP has.” The court then held that AFP and the Post were liable for copyright infringement, granting summary judgment on that issue in Morel’s favor but limiting statutory damages to a single award per infringement.

Getty, however, had another defense up its sleeve: a DMCA safe harbor provision designed to protect service providers from infringement claims that arise “by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” 17 U.S.C. 512 § (c)(1). To benefit from any of the DMCA safe harbors, the party seeking protection must be a service provider. Additionally, the particular DMCA safe harbor at issue requires that the service provider (1) lack knowledge of the infringing material or quickly remove it upon receiving knowledge of its infringing nature and (2) does not receive a financial benefit directly attributable to the infringing activity.

Judge Nathan denied Getty’s motion for summary judgment claiming DMCA protection and found that material issues of facts existed regarding whether Getty is a service provider under the DMCA, its intent in licensing the photos, and whether it received a financial benefit from doing so. Judge Nathan also denied summary judgment on Morel’s DMCA and willful infringement claims against all defendants. These outstanding issues are reserved for trial where $1.2 million in damages are at stake if defendants are found to have acted willfully.

This is one of the first cases to address commercial use of images that users make available to the public via social media. This case arguably stands for the proposition that sharing pictures on social media platforms does not destroy your copyright protections in those pictures. But really it all comes down to the TOS of the platform upon which you share your works. For example, Instragram recently received a huge backlash from its users after many of them interpreted changes to Instragram’s TOS as granting Instragram rights to sell images without user permission. Until the courts rule differently, news organizations and other media outlets should be wary about using images posted on social media platforms and should pay special attention to the TOS of each. The parties in this case must have incurred huge electronic discovery costs since so much of the evidence was based in emails and other electronic communications and transmissions. So, think before you use someone else’s TwitPic.