Agence France v. Morel: Can Content Creators Control the Commercial Exploitation of Their Content Once They Post It On Twitter?

Can users of social media have it both ways? Can they share on Twitter their posted content but still control its commercial exploitation and maybe thereby prevent others from infringing their copyrighted content? The recent case of Agence France Presse v. Morel gives photographers and other Twitter content posters limited control under defined circumstances. The case is worth reading because it breaks new ground. Let me begin with the facts.

The Creation of the Photos

 

The plaintiff Agence France Presse (AFP) is a French news agency offering photos to the media. Defendant Daniel Morel is a professional photographer who was in Haiti during the earthquake on January 12, 2010, and photographed its aftermath.

Morel managed to access the internet that day opening accounts on Twitter and TwitPic, a third-party application that allows users to upload and share pictures. Twitter allows images posted on TwitPic to be linked to one’s Twitter stream and retweeted like any other Twitter content. Morel immediately posted on his TwitPic page a number of photographs of the Haiti devastation adding on his page (but not on the photos themselves), these attributions: “Morel” and by “photomorel.” Morel then tweeted that he had “exclusive earthquake photos” and directed users to his TwitPic page.

The Infringement

A feeding frenzy of infringement followed. A few minutes after Morel posted his photographs, Lisandro Suero, not a photographer, copied Morel’s photos on his TwitPic page and tweeted that he had “exclusive photographs of the catastrophe for credit and copyright.”

A number of news agencies, including AFP, initially reached out to Morel on the evening of January 12 and sought to license his photographs. But apparently (as alleged by Morel) when he failed to timely respond, AFP downloaded 13 of Morel’s photos from Suero’s TwitPic page and placed them on its online photo database called the Image Forum. AFP further transmitted them to Getty where Morel’s photos were labeled with the credit line “AFP/Getty/Lisandro Suero.” Getty licensed Morel’s photos, without his authorization, to CBS and CNN, among others. Although AFP the next day instructed Getty to change the photographer credit from Suero to Morel, Getty continued to license Morel’s photographs identifying AFP/Getty as the authorized source. Morel’s photos became front page news.

Morel then demanded payment from AFP and others alleging infringement. In response, AFP sued for declaratory judgment in the Southern District of New York. AFP’s complaint asserted that, when Morel uploaded his photos to Twitter, Morel agreed to be bound by Twitter’s terms of service which gave it a non-exclusive royalty-free license to exploit this content. Morel counterclaimed claiming AFP and other news agencies added as third-party defendants willfully infringed his copyright by licensing and exploiting his photos without permission.

The Court Denies the Motion to Dismiss

Thereafter, AFP moved to dismiss those claims based on Twitter’s terms of service. Its memo is here. AFP seemed to have a good argument based on some of the terms of service that encourage and permit wide reuse of content:

By submitting, posting or displaying Content on or through the Services, you grant us [Twitter] 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 (now known or later developed).

Tip. This license is you authorizing us to make your tweets available to the rest of the world and to let others do the same. But what’s yours is yours – you own your content.

AFP asserted that, when Morel authorized Twitter “to let others” make his “tweets available to the rest of the world,” Morel gave AFP a license or authorization to do what it did. AFP also noted that TwitPic simply incorporates Twitter’s terms of service by informing those logging onto TwitPic that they will be operating under Twitter’s terms.

In response, Morel argued here it was not bound by Twitter’s terms of service, even though those terms expressly provide that Morel’s access to and use of Twitter is “conditioned on [his] acceptance of and compliance with these Terms.”

The court agreed with AFP that the terms of service governed but construed them to favor Morel. (The terms are here.) In reaching this result, the court relied on a term of service neither side had brought to its attention, providing:

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 for the syndication, broadcast, distribution or publication of such Content on other media and services,

Judge Pauley held this term required Twitter users to sublicense “only to Twitter and its partners.” In other words, although Twitter users were free to share and display Morel’s photos on that site, once a user attempted to distribute those photos via a sublicense, the sublicensee had to be a Twitter partner. Similarly, the court noted that TwitPic’s terms of service “grant a license to use photographs only to Twitpic com or its affiliated sites.”

The court concluded that AFP and the third-party defendants did not qualify as permitted sublicensees because they were neither Twitter partners nor affiliates of TwitPic. Thus they were not authorized to “re-use [Morel’s] copyrighted postings.”

But there is some ambiguity in the opinion. The court (at p. 11) in later rejecting AFP’s claim that it was a third-party beneficiary of the Twitter’s terms, stated that those terms “require[d] Morel to confer certain rights of use on two classes–Twitter’s partners and sublicensees.” This sentence appears to expand permitted sublicensees beyond Twitter partners to those persons or entities to whom Twitter has expressly granted a sublicense.

The Guidance the Case Offers

In any case, the decision appears to divide the universe into Twitter and non-Twitter spheres.

As Stephen M. Kramarsky points out in his fine New York Law Journal article on this case, within the Twitter sphere its millions of users are encouraged and allowed unlimited and uncompensated commercial use of posted content so long as the content remains within that sphere. Thus, for instance had CBS simply linked to Morel’s photos on its Twitter stream or copied those photos to its TwitPic page, Morel could not have complained despite the lost income he might have suffered.

But, once a Twitter user attempts to transport posted copyrighted content outside the Twitter sphere, its rules of service became a giant stop sign. Those rules require the Twitter user to either sublicense to a Twitter partner (or maybe even a Twitter sublicensee) or risk infringement. Thus, rules of service, so long a never-read link on the bottom of a web page, will now be Exhibit A in any resolution of an intellectual property dispute arising from the use of content posted on social media.

Have you have had any disputes with your own social media site involving its terms of service? Did the terms make any sense? Were they applied fairly? We would all be interested in learning about your experiences in this area.

For a related post on this case dealing with its DMCA issues click here.