[Post by Venkat]
Agence France-Presse v. Morel, Case No. 10-civ-2730 (S.D.N.Y.) (March 26, 2010)
The Agence France-Presse (AFP) is involved in litigation over photographs it acquired through Twitter. This could turn into a debacle for AFP, if it hasn’t already reached that point.
Background: As described in the photographer’s pleadings, Daniel Morel is a photographer who has significant experience working as a photojournalist in Haiti. In the aftermath of the earthquake, he took photographs. He then uploaded (through the help of a friend) some photographs to TwitPic. Another photographer based in the Dominican Republic (Lisandro Suero) apparently copied the images to his own TwitPic account and then purported to license the images. [correction: Suero is not a photographer and provided as contact information, a Dominican phone number (which would not work in Haiti).]
AFP obtained these images (through what it thought was a license from Suero), used the images itself, and then licensed the images to Getty for further distribution. Many publications ran the photos and credited AFP/Suero. Morel got wind of this and started sending around cease and desist letters. AFP then filed a declaratory judgment action asserting commercial defamation and seeking a declaration of non-infringement. Its argument on the issue of whether it had permission to use the photos was that AFP did indeed have permission, and this permission was based on a license contained in the Twitter terms of service! Morel turned around and filed counterclaims for infringement. (A bunch of other media entities are all embroiled in the dispute and they’ve been indemnified by AFP.)
Thoughts: As an initial matter, it’s worth mentioning that if someone is found to have infringed, their good faith (while relevant to damages) is irrelevant to infringement. AFP’s request for a finding of non-infringement does not argue that it obtained some sort of license from Suero that it turned out Suero was not capable of granting. Instead AFP argues that “by posting his photographs on Twitter, Mr. Morel was granting the requisite license to Twitter and third parties to use, copy, publish, display and distribute those photographs.” There are two basic problems with AFP’s position (that it obtained a license through the posting of images through Twitter).
[the license to Twitter] includes the right for Twitter to make such [c]ontent available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such [c]ontent on other media and services.
So, Twitter can license the content to its third party partners, but Twitter obviously didn’t grant an express license to AFP, otherwise AFP would have argued that this was the case. The idea that AFP could somehow rely on the default Twitter terms (without separate authorization from Twitter) to publish content it finds on Twitter outside of the Twitter ecosystem doesn’t even pass the laugh test. Someone should have nuked this argument before it was put on paper.
[A sidenote on the implied license issue. There’s a big difference between “embedding” content or hot-linking — which courts would probably find is not infringing, based on application of the “server test” — and actually downloading/copying content to your own servers. The key question in this context is where is the content hosted. Check out Professor Goldman’s post on Perfect 10 v. Google and Amazon, as well as this post by Fred von Lohmann of the EFF for an explanation of the server test as it’s been treated by the Ninth Circuit. I haven’t taken a close look at Twitter’s latest “embedded tweets” feature, but I would expect that as with embedded YouTube videos, there’s no serious question of infringement here. There’s a world of difference between the embedded Tweets feature which Twitter recently rolled out, and what AFP did here.]
Finally, there’s the terms of service issue. Courts are pretty willing to enforce online terms, but of all the people to raise an argument that the terms should not be enforced because he didn’t read and understand them, certainly, someone struggling to get online in the immediate aftermath of the Haiti earthquake stands a better chance than most other people.
The equities of the situation are pretty bleak here for AFP. If you read through Morel’s complaint, it paints a pretty compelling picture of someone who risked life and limb to take pictures in a disaster zone, and uploaded the pictures. The big bad media company then comes along, starts trafficking in the images, then turns around and sues the guy for commercial defamation? Best of luck to AFP on making that argument in front of a jury.
The bigger lesson may be for AFP and others who are working in social media. I’m willing to bet that AFP’s usual due diligence standards were relaxed because the AFP employee contacted Suero through Twitter. After all, Suero had a “verified account.” (I’m kidding about the verified account, it was actually a faux verified account, but that’s not something a casual Twitter would necessarily pick up on.)
A lesson for content creators as well. Uploading content to social networking websites can affect your legal rights. I don’t think they will be determinative in this particular instance, but it’s something to keep in mind.
Finally, for Twitter, third parties seem to be confused as to the scope of the license granted in the Twitter terms of service. Whether this is due to confusion around some sort of perceived relationship between Twitter and TwitPic, or for some other reason, this is probably worth clarifying, particularly given the new feature that Twitter just rolled out. In general, Twitter probably wants to encourage broad usage within its ecosystem (such as through its embedded tweets feature) but require one-off licenses when used outside of the ecosystem (such as when someone compiles a list of Tweets and includes them in a printed book).
Media Nation: “Haitian copyright case turns on Twitter’s TOS”