TweetPhoto (now Plixi) To Start Charging For Twitter Celeb’s Pics

[Post by Venkat Balasubramani]

I posted last week about the AFP/Morel Haiti photo debacle where the court rejected AFP’s arguments that it had a license to photos posted to Twitpic by virtue of the Twitter & Twitpic terms of service. Two quick follow up points to that post.

First, Joe Mullin covered the story at paidContent (“Court To AFP: Pics Aren’t Free Just Because They’re On Twitter“), and AFP’s lawyers made some striking comments:

AFP’s attorney, Joshua Kaufman of Venable LLP, contacted me today and said his client will continue to litigate this case. AFP’s fundamental position—that uploading pictures to TwitPic makes them available for other parties to use—hasn’t changed. And it’s common practices for news services to use such images, added Kaufman, saying: “If you look in magazines, there are hundreds of pictures a week that are taken off of TwitPic.” That’s because when a user agrees to Twitter’s terms of service (which all TwitPic users must do), the user agrees that Twitter, its partners, “and others” have the right to re-broadcast content, according to Kaufman. (The Twitter terms of use appear to have changed since this all occurred in January 2010.) “AFP certainly believes they acted appropriately, within the terms of the license,” he said.

Yikes! If this is a “common practice,” it looks like there could be other lawsuits out there. What’s striking about this comment isn’t that AFP’s legal position is off-base (it is). What’s most striking is that AFP is the same organization that sued Google for linking to AFP’s stories. (See “AFP Gets Confused As To How The Internet Works.”) Something tells me that a ruling in AFP’s favor in this case could undercut their future position as a plaintiff.

Second, the New Statesman reports that TweetPhoto (now Plixi) has agreed to license celebrity photos which are posted on Plixi (“News agency seeks to cash in on celeb Twitter pics“). (h/t TweetSmarter) As the story notes, Plixi signed a deal with WENN, which will now start charging publishers for use of celebrity images. Plixi is in a different position than AFP. Plixi (like Twitter) could claim a broad license to exploit content uploaded to the service; unlike Plixi, AFP is a third party that’s coming along and saying it can exploit the content. However, interestingly, Plixi’s user agreement does not seem to convey such broad rights to Plixi (See section 15 of Plixi’s Terms of Service). The terms only allow Plixi to use the photos for the purpose of promoting Plixi:

Plixi does not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant Plixi the following worldwide, royalty-free and non-exclusive license(s), as applicable:

With respect to Content you submit or make available for inclusion on publicly accessible areas of Plixi, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purposes of providing and promoting Plixi to which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or Plixi removes such Content from the Service.

Maybe Plixi has separate deals with celebrities regarding the rights in celebrity photos?

Added: Additional coverage and link to the original story from Press Gazette: “News agency seeks to cash in on celeb Twitter pics

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