Daniel Morel, a Haitian-born photojournalist, was in Port-au-Prince when the big earthquake occurred in 2010, one of very few journalists on the ground. He took pictures of the devastation and managed to upload and disseminate his photos using his Twitter account and a third-party app called Twitpic. The Twitpic terms of service provide that owners of images retain copyright in them. Morel’s pictures were retweeted numerous times, and he sold them to many news services, which credited him as the photographer. Agence France-Presse also downloaded the images, but credited them to its own stringer and sold them to third parties (including Getty Images). AFP, with a certain amount of chutzpah, sought a declaration that it had not infringed Morel’s copyright; he counterclaimed: Agence France Presse v Morel, US Dist LEXIS 5636.
Nathan J of the district court in Manhattan found for Morel with respect to his claims of direct infringement. AFP could not establish that it was a third-party beneficiary of Morel’s agreement with Twitpic or that a sub-licence was somehow granted through retweeting, given the clarity of the Twitpic terms of service, which stated that retransmission of images merely granted a licence to use someone else’s images on Twitpic.com or an affiliated site. The judge did think, however, that damages should be limited to a figure based on the number of works infringed, not the number of infringements (which would be much larger, given the number of retweets involved). Issues related to Getty’s knowledge and intent, wilful infringement by AFP and Getty, and contributory or vicarious liability were left for another day, as they turned on questions of fact which could not be decided summarily.
[Link available here].