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Thinking About Using Pictures Pulled From Twitter? Think Again, New York Court Warns

Posted in Copyright, DMCA, IP, Litigation, Terms of Use

If you want to use those pictures you found on Twitter, beware. A federal judge in New York recently held that taking photos from Twitter to use for a commercial purpose infringes the photographer’s copyrights. On January 14, 2013, Judge Alison Nathan ruled that Agence France Presse (AFP), which provides subscribers with access to photos though an international wire and databank, and the Washington Post (“the Post”) infringed Daniel Morel’s copyrights to photos he posted on Twitter.

In January 2010, freelance photographer Daniel Morel uploaded to his TwitPic account a number of photos he took in Haiti in the immediate aftermath of the earthquake. An individual named Lisandro Suero took those photos from Morel’s Twitter account, reposted them to his own Twitter account, and tweeted that he had exclusive photos of the earthquake. AFP got the photos from Suero’s Twitter page, attributed the photos to Suero, and began distributing them to users of its wire and databank services. Getty Images (“Getty”) received the photos through AFP’s wire service. The Post received the photos from Getty. Getty and the Post published the photos on their websites, with captions that attributed them to Suero.

When Morel’s exclusive agent found out that AFP, Getty and the Post were using his photos, his agent complained. While at least some efforts were made by AFP, Getty and the Post to address Morel’s agent’s complaint, those efforts in most respects fell far short of what is required under the law.

In March 2010, AFP sought a declaratory judgment that it did not infringe Morel’s copyrights, and Morel counterclaimed for copyright infringement against AFP, Getty and the Post. During the course of the case, Morel moved for summary judgment on his copyright infringement counterclaim. In response, the defendants argued that pursuant to the Twitter Terms of Service (TOS), Morel provided them a license to use the photos by his very act of tweeting the photos.

Judge Nathan disagreed. Judge Nathan found that the Twitter TOS provides that users generally retain their rights to the content they post—with the exception of the license granted to Twitter and its partners. Twitter’s “Guidelines for Third Party Use of Tweets in Broadcast or Other Offline Media” further underscored that, while the Twitter TOS permit users to retweet posts, the Twitter TOS was not intended to let the “world-at-large” remove content from Twitter and commercially distribute it. Rebroadcasting tweets in their entirety is now a news program staple and actively encouraged by Twitter. Twitter’s TOS, however, do not permit media outlets to rip copyrighted material out of tweets and use it for some other purpose. Because AFP and the Post put forward no defense other than their license defense, Judge Nathan granted Morel’s motion for summary judgment and found them both liable for copyright infringement.

Unlike AFP and the Post, Getty argued that it was entitled to the benefit of the safe-harbor provisions of the Digital Millennium Copyright Act (DMCA) that protect service providers from liability for copyright infringement. Judge Nathan held, however, that genuine issues of fact existed as to whether Getty could take advantage of the DMCA safe harbor, noting that companies like Getty that are in the business of selling copyrighted material may not be shielded from copyright liability under the DMCA’s safe harbor. Thus, it remains to be seen whether Getty will also be found liable for copyright infringement.

In one bright spot for AFP and Getty, Judge Nathan granted summary judgment in their favor on the proper method for calculating statutory damages under the Copyright Act, which can result in awards of up to $150,000 per work infringed. Morel claimed that he was entitled to a statutory damage award “in the tens or hundreds of millions of dollars” against AFP and Getty. Morel argued that, because AFP and Getty distributed the photos to many of their subscribers, each downstream infringement by one of their subscribers would entitle him to an additional statutory damages award. Judge Nathan disagreed and held that any award of statutory damages against AFP and Getty could not be multiplied based on the number of infringers with whom they may be jointly and severally liable.

This decision clarifies that Twitter users do not lose ownership rights to their content by posting it to Twitter. Although you may have the right to retweet or publish tweets in their entirety, you don’t have the right to take someone else’s content and use it for commercial gain.