This is a follow-up to the previous post that looked at the potential dangers of sharing/licensing photos on Twitter. And, since I’m talking about legal issues, let me go ahead and get my disclaimer out of the way…

While I am a lawyer, I am not your lawyer and this is an editorial commentary on newsworthy issues rather than legal advice. Remember that one too – unless you’re paying a lawyer, you aren’t really getting legal advice, and what you are getting on blogs, forums and, for that matter, Twitter is worth just what you paid for it. Seriously, remember that the next time you want to rely on someone’s advice on a forum. The judge won’t be too keen on a printout of a blog post when you hand it to him as “evidence.”

Can a News Agency Use Photos You Share on Twitter?

The last time around, we talked about whether sharing your photos on Twitter gave Twitter a license to use your photos however it sees fit. This time, we’re talking about a third-party news agency using photos shared on Twitter and one photographer who jumped right into the thick of it.

Daniel Morel’s Photos of the Haiti Earthquake

In a federal case pending in New York, the Agency France Presse (“AFP”), along with Getty Images, CBS, ABC, and Turner Broadcasting, are in a fight with Corbis photographer Daniel Morel. Almost a year ago, Morel was in Haiti when the earthquake hit, and he immediately grabbed his camera to capture the aftermath. Morel uploaded several images through TwitPic and Twitter.

A few minutes after Morel uploaded the images, Lisandro Suero, a resident of the Dominican Republic, downloaded Morel’s photos and them re-uploaded them to his own TwitPic account. Morel also began to receive numerous inquiries from news outlets requesting to license his images.

An AFP representative also contacted Morel about licensing his images, but ended up downloading Suero’s “copies” before Morel responded to the AFP. AFP also transmitted the photos to Getty Images for further licensing and were credited AFP/Getty/Lisandro Suero. From there, the photos spread like wildfire, being picked up by CBS, ABC and CNN.

Morel submitted his photos for expedited copyright registration in February 2010, then began doling out cease and desist letters from attorneys in March 2010 after AFP and Getty ignored less confrontational requests from Corbis, Morel’s licensing agency.

The Fight

AFP filed a complaint against Morel seeking a declaratory judgment that the AFP did not infringe Morel’s copyrights in the photos it used via TwitPic and Twitter.

For the non-lawyers out there, a “complaint” is the document filed by the “plaintiff” to start a law suit. In a complaint, the plaintiff usually tells the court how it was wronged by the “defendant” and what it would the like court to do about it. In this case, AFP wants the court to “declare” that it didn’t infringe Morel’s copyright because he granted to the world a license to use his photos via the Twitter terms of service.

After the AFP filed its complaint, Morel filed a counterclaim against AFP and also brought in Getty, CBS, ABC and Turner as defendants. Basically, Morel got to make the same “complaints” against AFP and the others to allege copyright infringement in addition to “defending” against AFP’s complaint.

These are all just procedural documents that help get to the meat of the fight, which is:

1. whether AFP and the other guys infringed Morel’s copyrights, and

2. asked differently, whether Morel granted AFP and the rest of the world a license to freely use his photos by uploading them to TwitPic and posting them on Twitter?

What AFP’s Lawyer’s Said

In oral argument:

These pictures were up. He is there with the camera. He may have had 100 more pictures that were not on Twitter, that were not free, that they wanted to purchase.

Just because somebody approached him doesn’t mean that they — that the Twitter terms and conditions aren’t true. They may not even have understood the terms and conditions from Twitter. Who knows if they had ever bothered? They saw pictures up, and they say, Hey, we want more pictures. We have seen these you have posted to Twitter.

. . .

We are saying that by accepting the terms and conditions, he accepted — he granted a license, and the terms of the license are what is set out in Twitter as to the use of third parties.

. . .

It is what Twitter and Twitpics are all about. It is the broadcast — re-twitting has become part of the lexicon, because these when you post these things up here, it happens again and again, it’s what people do at these sites. It is not matter of stealing.

I wouldn’t want to be in this guy’s shoes making this argument to the court; however, he’s trying to make the best lemonade that he can with the lemons AFP brought in the door. But, man, that’s some pretty sour lemonade.

The Court Weighs In

The case is still in the early stages of litigation; however, AFP filed a motion to dismiss Morel’s claim of copyright infringement, which is just another procedural document that gets to the point of ascertaining whether Morel has alleged a proper claim even if everything he said is true.

AFP asserts that it was either a direct licensee via Twitter or a third-party beneficiary of a license between Morel and Twitter.

The court ruled that AFP failed to establish either and Morel’s claims for infringement can move forward.

The court noted that Twitter does grant a license to its partners; however, it did not discuss the breadth of this license – only noting that AFP and the other defendants are not Twitter “partners.” Same thing with TwitPic, which you grant a license to use photos to “affiliated sites” – and AFP and the other defendants weren’t affiliates.

The argument that AFP was a third-party beneficiary is a little murkier because it has to be evaluated under California law as per Twitter’s terms of service. The short of it is that the court said the language of Twitter’s terms is “ambiguous and insufficient to establish on the pleadings that Morel understood that [Twitter] had [the] intent to confer a license on other users.” In other words, AFP loses this part of its motion to dismiss as well.

As the Case Moves Forward

So, AFP, Getty and the others now see what the court’s view of the law is moving forward. The standard under California law (again, specified by Twitter TOS) to show that Morel was a “third party beneficiary” requires proof that:

1. Morel understood that

2. Twitter had the intent

3. To confer a license on other users

Good luck with that AFP.

The first argument that the AFP is a direct licensee as a Twitter “partner” or a TwitPic “affiliate” is a complete lost cause.

Closing Thoughts

AFP is really the bad actor here because it appears they had contacted Morel before they decided to use Suero’s copies, and it smells like someone at AFP probably knew that they were really Morel’s images.

I think Morel gets paid in the end. I don’t think AFP, Getty and the rest will push this to the end. Although, Morel might push the matter as his attorney seemed pretty fired up at his behest during the oral argument. ABC wanted to move toward settling the case, while Morel’s attorney was having none of it.

I think the Twitter license argument is quite poor. The defendants will see the writing on the wall and pay the photographer (and his attorney) a generous sum of money. The bill probably ends up at AFP’s door from Getty, ABC and rest as well because AFP started the whole mess to begin with.

I also think this is a good case to preach the usefulness of watermarks for online images. I know there are lovers and haters of watermarks, but this case definitely makes a good “pro-watermark” argument.

Additionally, the Judge’s findings that Twitter users and other third-parties are not “partners” of Twitter or “affiliates” of TwitPic provides that sigh of relief that some photographers have been looking for. While the jury is still out (pardon the pun) on the third-party beneficiary argument, I’m not overly concerned that AFP or any other would-be infringer will prevail on such an argument once the TOS of each service are properly parsed in a ruling on the merits.

Finally, I actually discussed this case with Scott Bourne via email a couple of months back when the original Twitter license issue cropped up. While we talked about a number of aspects of the case, I’ll leave you with my initial impressions of the issues that I gave to Scott back in October…

The argument seems to me like it should center around whether TwitPic’s TOS go so far as to allow AFP to publish those photos. And, again, I think that is stretching the license in those terms beyond the scope that is written or intended. A careful reading of TwitPic’s TOS shows that this license is limited to (1) TwitPic’s service and (2) access and redistribution by others “through the Service” and as permitted by the TOS. One of those limitations for accessing photos is not accessing content except using explicitly authorized means by TwitPic.

While TwitPic’s license is seemingly broad, it is required for the functionality of the site, content delivery through API, user access on web browsers (cache, thumbnails, history – those photos are actually physically retained for a period of time on the user’s machine), smartphones, and plenty of things that I’m missing.

Additional reading:

Full Court Opinion

Eric Goldman’s Technology & Marketing Law Blog

Oral Argument Transcript