- From LexisNexis® Mealey’s™ Daily Legal News.
A New York federal judge on Jan. 14 ruled that although the Twitter social network’s terms of service (TOS) permit users to repost or “re-tweet” other users’ posted content, this did not confer a broad license to permit use of a photojournalist’s copyrighted images by a news agency, a photo agency and others (Agence France Presse, et al. v. Daniel Morel, No. 1:10-cv-02730, S.D. N.Y.;2013 U.S. Dist. LEXIS 5636).
As such, U.S. Judge Alison J. Nathan of the Southern District of New York found that material issues of fact exist as to claims and cross-claims for copyright infringement related to photographer Daniel Morel’s pictures, denying all parties’ summary judgment motions.
Morel was in Haiti on Jan. 12, 2010, when it was hit by a devastating earthquake. Morel took pictures of the earthquake’s aftermath and posted them to his Twitter page via his TwitPic account. Shortly thereafter, the images were re-tweeted by Twitter user Lisandro Suero, who claimed to own the pictures.
That same day, Vicent Amalvy, a director of photography with news agency Agence France Presse (AFP), saw the pictures and uploaded them to AFP’s photo desk. AFP then transmitted the images to Getty Images Inc., a photo agency, which made them available to its customers. AFP and Getty both attributed the photos to Suero.
When the misattribution was eventually noted by an AFP employee, correctly attributed versions were posted in both AFP’s and Getty’s databases, but the previous images were not removed. On Jan. 13, 2010, Corbis Inc., another photo agency, informed Getty that it had exclusive rights to use Morel’s photos. Getty and AFP subsequently removed the photo credits to Morel, but some of those misattributed to Suero remained posted for a longer period of time until that mistake was eventually caught.
In March 2010, AFP filed a declaratory action against Morel in the District Court, seeking a declaration that it had not infringed Morel’s copyrights and alleging commercial defamation by him. Morel filed counterclaims against AFP, Getty and the Washington Post (The Post), which had used four of Morel’s pictures in an article. Morel alleged direct, willful infringement by all the defendants. He further alleged contributory and vicarious infringement by AFP and Getty under the Digital Millennium Copyright Act (DMCA) for their customers’ use of the photos. The parties filed cross-motions for summary judgment.
Because no one disputes Morel’s valid copyrights in the photos at issue, Judge Nathan noted that the dispute over direct infringement liability hinges on the counterclaim defendants’ affirmative defenses.
AFP contended that it cannot be found liable for infringement because the Twitter and TwitPic TOS provided it with a license to re-use the photos. Judge Nathan disagreed. In its TOS, Twitter “encourage[s] and permit[s broad re-use of Content” posted by its users. However, the judge found that AFP overlooked the TOS requirement that any re-use or re-tweeting of content must give the original posters “attribution for their content,” most importantly including the original tweeter’s user name.
This did not provide a license for AFP’s conduct, Judge Nathan ruled. Additionally, the judge noted that the TOS holds that its users retain rights to any content they post, stating “what’s yours is yours – you own your content.”
Getty claimed that it was entitled to safe harbor under the DMCA as a service provider. Judge Nathan found that a “service provider . . . is an entity that, in broad terms, facilitates, supports, or enables online access or the activities of users of the internet.” She found that issues of fact exist as to whether Getty qualifies as a service provider in its stated role as a file-hosting service for AFP’s images. In light of its licensing agreement with AFP, its subsequent licensing of those images to its own subscribers, and its ability to edit and control photos, the judge held that a jury might find that Getty is more than just a file-hosting service. The judge also found that issues remain as to Getty’s intent and financial benefits, which are important factors when considering DMCA safe harbor.
There are also genuine issues of fact as to whether each of the counterdefendants are guilty of volitional conduct related to the infringement counterclaims against them, Judge Nathan held. Although a jury could certainly find that each took action to take down the photos at issue when they became aware, the judge also held that a jury might find that the active licensing of the photos constitutes volitional activity and willful infringement. The judge held similarly for questions of secondary and vicarious liability, declining to grant summary judgment to either side on these points.
Even though the Post did not license the pictures, the judge noted that disputed issues exist as to whether it properly received notifications of Morel’s infringement allegations from his counsel.