Twitter Does Not Give News Services Copyright License to Lift Photos

January 17, 2013, by Mandour & Associates, APC

Los Angeles – News services The Washington Post Co. and Agence France Presse were found by a New York federal judge to have infringed a photojournalist’s copyrights when they published photos lifted from the photographer’s Twitter page.

U.S. District Judge Alison J. Nathan granted partial summary judgment in favor of photographer Daniel Morel who accused Agence France Presse, the Washington Post and Getty Images Inc. of copyright infringement.

The dispute began after Morel had taken photos of the aftermath of the earthquake in Haiti in January 2010.  Morel uploaded his photos onto his Twitter account, which were later used by The Post and AFP.  Upset that the companies had used his photos without his permission, Morel publicly accused the companies of copyright infringement.

In March 2010, AFP filed a declaratory judgment action against Morel seeking a court ruling that it did not infringe Morel’s copyright and accusing Morel of defamation.  Morel responded with a counterclaim against AFP, adding Getty and the Post as counter defendants, for copyright infringement.  AFP argued it has a license to use photos posted on Twitter, including Morel’s Haiti photos, due to Twitter’s terms of service which states that when photos are uploaded to TwitPic, the user grants TwitPic and affiliated sites the right to use, redistribute, and sub-license the photos.

AFP argued that being a Twitter user made it an affiliated site and that TwitPic’s claim that it “encourage(s) and permit(s) broad re-use of content” gives other Twitter users license to use the photos posted to Twitter.

Judge Nathan ruled that “Twitter and its partners” does not include AFP and said that the Twitter terms of service clearly state that “all images uploaded are copyright in their respective owners.”  Judge Nathan also said that Twitter never intended to bestow a license on AFP to use or sell Morel’s photos, or any other Twitter user’s photos.

The ruling found both AFP and the Post liable for copyright infringement for using Morel’s photos, but Judge Nathan would not grant summary judgment with respect to Morel’s claims that the Post and AFP willfully infringed his copyrights, stating that is a decision to be made at trial.

Judge Nathan also refused to grant summary judgment with respect to Getty.  She ruled that there was still a genuine dispute of fact as to whether Getty is protected by the Digital Millennium Copyright Act’s safe harbor provisions, as the company mostly serves as a file-hosting service for AFP’s images.  The ruling stated that it is unclear at this point if Getty acted merely as a channel for photo distribution or if it was involved in any kind of licensing, which would disqualify it from safe harbor protection.