Does copyright protection extend to original pictures that users post on their Twitter account? That question was considered by the United States District Court for the Southern District of New York last year. Agence France Presse v. Morel, 2011 WL 147718 (S.D.N.Y. Jan. 14, 2011).

The defendant, Daniel Morel (“Morel”), was a photojournalist working in Haiti when an earthquake devastated the city in January 2010. After photographing the aftermath, he opened his Twitter account as well as Twitpic, a third-party application of Twitter. He uploaded his earthquake photos to Twitpic and then posted a message on Twitter that advertised that he had “exclusive earthquake photos,” while also providing a link on Twitter to his Twitpic page. There were no copyright notices on the images themselves, but his Twitpic page included the attributions “Morel” and “by photomorel.”

Minutes after the photos were posted, Dominican Republic resident Lisandro Suero (“Suero”) copied the photos, posted them on his Twitpic account and then “tweeted” that he had the “exclusive photographs of the catastrophe for credit and copyright.” Morel at 2. He did not give attribution to Morel. Eventually, the plaintiff, Agence France Press (“AFP”) and many other international news agencies began to acquire photos of the devastation. AFP emailed Morel asking if he had pictures the agency could use, but before he responded, AFP downloaded 13 of Morel’s earthquake photos from Suero’s Twitpic page. AFP placed the photos in its image forum, where they were transmitted to Getty (Getty holds exclusive rights to market AFP images in North America). AFP then included a credit line of “AFP/Getty/Lisandro Suero.” Getty subsequently licensed the photos to other news outlets, including CBS and CNN.

In December 2010, AFP brought a declaratory judgment action that alleged that it had an express license to use Morel’s photos and thus did not infringe on his copyright. In a counterclaim, Morel alleged that AFP had in fact infringed on his copyright. AFP made a motion to dismiss Morel’s counterclaim, but the Court denied it.

To prevail on a claim of copyright infringement, a plaintiff must demonstrate both:

1)      ownership of a valid copyright, and

2)      infringement of the copyright by the defendant.

Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 108-09 (2d. Cir. 2001).

However, even where both elements of the infringement claim are met, the existence of a license is a valid defense. Tasini v. N.Y. Times Co., Inc., 206 F.3d 161, 170-71 (2d. Cir. 2000). AFP argued that the Twitter and Twitpic Terms of Service granted the news agency an express license to use Morel’s photos and thus did not infringe on his copyright. However, the Court did not accept the argument, finding that the Terms of Service “by their express language […] grant a license to use content only to Twitter and it partners. Similarly, Twitpic’s terms grant a license to use photographs only to or affiliated sites.” Morel at 6. The Court held that because AFP was not a partner or affiliate of Twitter, it had not proven that it had an express license to use the photos.

AFP also argued that it should be considered a third party beneficiary of the agreement between Morel and Twitter. However, the Court held that the contracting parties must have intended to benefit the third party in order for that party to be considered a beneficiary of the agreement. The Court did not find any evidence that the language of the agreement indicated any intention to confer a license upon third parties, even though the language might have encouraged re-use of any content that is posted. “That language is ambiguous and insufficient to establish on the pleadings that Morel ‘understood that [Twitter] had [the] intent’ to confer a license on other users.” Id.

The Morel Court declined AFP’s motion to dismiss the plaintiff’s counterclaim and found that the photographer could proceed with his copyright infringement claims.


© 2012 Nissenbaum Law Group, LLC

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