Posted By: Justin McKay
Copyright law has protected artistic expression for hundreds of years, but it wasn’t until recently that Copyright law had to deal with the likes of Twitter and other social media outlets. Below is a summary of a recent case that shows how Copyright law applies to the images we share in the digital age. Pay special attention to the importance of the terms of service in this case!
Brief Fact Summary
Daniel Morel, a professional photojournalist, took pictures of the aftermath of the 2010 Haiti earthquake and posted the pictures on Twitter. Minutes later, Lisandro Suero took those pictures and posted them on his Twitter account, claiming them as his own. AFP, a news agency, took the photos posted by Suero and transmitted the photos to Getty, an imaging licensing company. Those images were credited to Suero instead of Morel, labeled as “AFP/Getty/Lisandro Suero.”
Morel’s attorney notified Getty and AFP about the issue, but the photos were never fully removed or credited to Morel, resulting in this lawsuit.
Brief Law Summary
Generally, as soon as a person creates a painting, photograph, song, book, or other work of art, that person automatically has the exclusive right to reproduce and sell that work of art.
In this case, Morel’s rights vested as soon as he took the picture, and those rights were infringed by AFP when AFP licensed them to Getty, and also by Getty when licensed them to other news organizations (Getty was also a party to the lawsuit).
Brief Argument Summary
Basically, AFP and Getty admitted to the court that they did infringe on Morel’s copyrights, but their primary defense was that they should not be liable because Morel granted them a license by agreeing to Twitter’s terms of service, and by posting those images to Twitter.
The Court rejected that defense, finding that the terms of service allowed Twitter itself to reproduce the images, but not third parties like AFP or Getty. In fact, the language of the terms of service said:
You retain your rights to any Content you submit, post or display on or through [Twitter]. By submitting, posting or displaying Content on or through [Twitter], you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods […]. You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter […].
Specifically, the defense failed because AFP and Getty were not “partners” with Twitter.
Morel also argued that AFP and Getty were liable under other theories of copyright infringement because they knew or should have known that the images were his. Essentially, if someone knowingly or recklessly infringes on a copyright holder’s exclusive rights, then the penalties for that infringement are significantly increased. But, questions about a person’s state of mind (e.g., “What was their state of mind at the time? Did they know or should have known?”) are usually questions for the jury to answer, not a judge.
Last week, after months in the courts, a jury awarded Morel $1.2 million from AFP and Getty.