In one of the first major tests of intellectual property law involving social media services, a judge has ruled that news agencies cannot freely publish photographs posted to Twitter without the photographer’s permission.
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Earlier this year photographer Daniel Morel was shocked when a photograph he captured during the devastating earthquake in Haiti and posted to TwitPic was distributed by Agency France Presse (AFP) and published on the front page of newspapers around the world — all without his permission.
To add insult to injury, he was then sued by AFP when he sent cease and desist letters in response to the copyright infringement. The dispute has turned into a legal battle over whether images uploaded to TwitPic and shared on Twitter can be freely republished by third parties. In what might be an indication of things to come, a federal court has denied AFP’s pre-trial request to have the case thrown out.
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Earlier this month, the Daily Mail published some photos taken at a Dalston polling station during the British General Election by Emily James of Just Do It.
James’ photos were originally uploaded via TwitPic. Later, they were republished on several other sites, including The Guardian and Times Online, initially without permission or compensation. However, The Guardian and Times both offered James retroactive compensation. The Times offered £250 for using one photo, along with a brief emailed apology for using the image without permission.
The Daily Mail, however, initially incorrectly credited the image to someone else, then removed the credit line altogether. James sent them with an invoice for £1170 — a rate set at £130 and multiplied by three per image to compensate for their lack of knowledge or permission.
The picture editor at the Daily Mail responded, saying:
Thanks for the invoice.
Unfortunately we cannot pay the amount you have requested, these images were taken from twitpic and therefore placed in the public domain, also after consultation with Twitter they have always asked us to byline images by the username of the account holder.
We are more that happy to pay for the images but we’ll only be paying £40 per image.
James, aware of the difference between TwitPic and Twitter Terms of Service, responded to the Daily Mail:
I’m afraid that you are wrong about the terms of publishing on Twitpic. If you read the terms of service you will see that copyright is clearly retained by the poster:
http://twitpic.com/terms.do
Third parties who wish to reproduce posted images must contact the copyright holder and seek permission.
You should have contacted me if you wanted to use the photos, as every other news outlet did. had you done so, you might have been in a position to get the photos for £40’s each.
However you didn’t contact me, even though this would have been very easy to do, nor did you inform me that you had used them. Instead, I had to uncover that you had used them, that one of them was not credited even with the correct twitter account, and that none were credited as I would have asked them to be.
James and the crew at Just Do It Films say they are still waiting for full payment and an apology.
This seems to be a similar issue that photojournalist Daniel Morel has with news agency AFP over whether images distributed over TwitPic and Twitter warrant free public distribution.
Photojournalist Daniel Morel shot an iconic image of a shocked woman looking out from the rubble moments after last January’s earthquake in Port au Prince, Haiti. Within an hour, Morel jumped on Twitter to share 13 high resolution images he had uploaded on Twitpic. By the next day, the photo of the woman was picked up by Agence France Presse (AFP) and Getty Images, was run on the cover of several publications and websites.
But Morel said he never authorized the news wires to distribute his images. In fact, several of his images were credited to another person, Lisandro Suero of the Dominican Republic, who reportedly has no photographic background. However, Suero tweeted Morel’s images without the photographer’s permission, and claimed copyright as his own:
And so began a legal storm.
Now Morel is being sued by AFP after he sent them cease and desist letters that the agency calls an “antagonistic assertion of rights.”
According to court documents, AFP claims that they did not infringe on Morel’s copyright and is suing Morel for “commercial disparagement,” as well as “demanding exorbitant payment.” AFP says that Twitter’s Terms of Service allowed for them to use, copy and distribute the image, and that Morel did not specify limits on how the photo should be credited.
Morel responded, saying that he was not familiar with Twitter’s TOS, and maintains that the images were stolen from his account without his permission, distributed and sold by the agency, which then “induced” other publications to violate Morel’s copyright. In a counterclaim to the agency’s complaint, Morel’s lawyer, Barbara Hoffman wrote:
To the extent that under the circumstances a specific intent in posting the images on Twitter can be attributed to Mr. Morel given the circumstances, … he posted his images online and advertised them on Twitter in the hopes that his images would span the globe to inform the world of the disaster, and that he would also receive compensation and credit as a professional photographer for breaking news of the earthquake before the news and wire services.
Some publications, including The Wall Street Journal, NBC, and the Associated Press contacted Morel to exchange compensation for his permission to publish. Others did not.
In order to enforce his copyright, Morel sent several cease and desist notices to several publications.
It seems that the case really boils down to the semantics of the Twitter TOS.
What might be worth noting is that the court documents from AFP frequently cite Twitter’s TOS, which mostly regards the text in Tweets, and does not extend to content linked to (otherwise, entire sites’ content might be considered royalty-free). Morel uploaded on TwitPic, which has a separate Terms, and is an entirely separate entity from Twitter.
Media Nation blogger Dan Kennedy posted PDFs of AFP’s complaint against Morel and Morel’s answer.
Whatever the verdict, this suit may change the manner in which photographers and journalists transmit their data via social media, even in difficult emergency situations like post-quake Haiti.
Do you have legal insight, experience with copyright infringement, or any thoughts about social media and the TOS?
