[Post by Venkat with a few comments from Eric]

Agence France Presse v. Morel, 10 Civ. 2730 (WHP) (S.D.N.Y.; Dec. 23, 2010)

The Southern District of New York issued an order denying AFP’s request to dismiss photographer Daniel Morel’s copyright claims, rejecting AFP’s argument that uploading pictures to Twitter/Twitpic granted third parties (including AFP) a broad license to exploit this content. The result is not surprising from a legal standpoint, but should allow photographers (and others who upload content into Twitter’s ecosystem) to breathe a sigh of relief.

The court recaps in detail the factual background underlying the dispute in its order. In a nutshell, Morel took what turned out to be iconic photographs in the aftermath of the Haiti earthquake. He uploaded the photos to his Twitpic account and linked to them via his Twitter account. Shortly after Morel uploaded his photographs, Lisandro Suero copied the photographs and posted them to Suero’s own Twitpic page. Suero did not attribute the photographs to Morel. The facts are somewhat murky, but it does not seem disputed that AFP downloaded the photographs from Suero’s account, marketed and distributed the photographs, and initially credited Suero with taking the photographs. Ultimately, Morel cried foul, and AFP filed a declaratory judgment lawsuit saying it did not infringe. [Some of the discussions between AFP and Suero took place on Twitter, and make for interesting reading. I wonder if the casual nature of Twitter and email discussions contributed to AFP’s foibles here.] [Also, the photos were broadly distributed and licensed downstream, so there are a slew of defendants. I’ve mostly omitted discussion of the various defendants, focusing on AFP.]

Copyright Claim : AFP’s primary argument was that (1) “[it] had an express license to use Morel’s images [by virtue of the Twitter or Twitpic terms]” or (2) that it was a third party beneficiary of the agreement between Morel and Twitter. The court rejects this argument:

[b]y their express language, Twitter’s terms grant a license to use content only to Twitter and its partners. Similarly, Twitpic’s terms grant a license to use photographs only to Twitpic.com or affiliated sites. . . . the provision that Twitter ‘encourage[s] and permit[s] broad re-use of Content’ does not clearly confer a right on others to re-use copyrighted postings

The court also rejects the argument that AFP was a third party beneficiary to the Twitter license agreement, since AFP was not a “partner or sublicensee” of Twitter – AFP acknowledged that it was only a “user.”

Contributory/Vicarious Infringement : With respect to the contributory infringement claim, the court held that Morel’s allegations were sufficient:

Morel’s allegations that AFP and Getty knew that the images where his, disregarded his rights, and licensed his images to third parties are sufficient to plead knowledge and inducement of infringement.

The court similarly rejects AFP’s and Getty’s request to to dismiss the vicarious infringement claim. (The court does grant the request by CBS and CNN to dismiss the vicarious infringement claim because Morel failed to plead any “direct financial interest” in the exploitation of images by the affiliates of CBS and CNN.)

DMCA Copyright Management Information Claims : Morel’s DMCA claims against AFP were premised on AFP’s miscrediting of the images. AFP did not contest that the credit lines constituted “copyright management information” (as defined in section 1202), and the court finds that AFP acted with the requisite knowledge and intent. Interestingly, with respect to AFP, the court notes that Morel alleged that:

an AFP photo editor viewed [Morel’s] photos before asking about identical photos on Suero’s Twitpic page, and that when Morel failed to respond to the editor’s email, AFP downloaded the pictures from Suero.

Morel brought a second 1202 claim based on AFP’s “removal or alteration” of CMI, or distributing copyrighted material “knowing that CMI has been removed or altered.” The crux of Morel’s argument seems to be that he had posted CMI on his Twitpic page (e.g., by including “by photomorel,” “daniel morel,” and “morel”) next to the photos when he uploaded them, and AFP violated section 1202 when it distributed photos downloaded from Suero’s Twitpic account (which did not contain this information). The court construes the term CMI broadly, rejecting AFP’s argument that CMI must be contained on the photograph itself. In the court’s view, the information attached to Morel’s Twitpic account constitutes CMI, and Morel’s allegations regarding AFP’s distribution of the photo which did not contain this CMI was sufficient to state a claim.

AFP argued that CMI is limited to a “component of an automated copyright protection or management system” (i.e., a technological measure that controls access and reproduction), but the court rejects this argument, and the line of cases which take this approach.

Lanham Act : The court rejects Morel’s Lanham act claim as being foreclosed by Dastar, a case in which the Supreme Court rejected Lanham Act claims with respect to communicative products (finding that these claims should be brought under copyright law and allowing Lanham act claims would impermissibly broaden the scope of copyright protection).

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As I mentioned in a previous post, AFP’s position was a stretch, and it’s nice to have some clarity that uploading content into the Twitter ecosystem does not grant third parties a license to use that content outside the ecosystem. (Nor does sharing and encouraging others to share result in a license to third parties.) Twitter and its partners have a broad license, but that’s different from a random third party coming along, and claiming rights to the content. Photographers can rest easy!

The court construes Morel’s 1202 arguments broadly, and as Professor Goldman notes below, this is equally interesting (if not more so) than the Twitter/Twitpic license issue. This looks like a boon to content providers – almost any sort of notation which indicates that the content is yours can be copyright management information (under the court’s definition), and disseminating the content without this information (or after having removed it) can cause someone to incur 1202 liability. It seems like the court’s reading of section 1202 (although it is supported by the language of the statute) allows a plaintiff to assert exactly the type of claim the Supreme Court negated in Dastar.

Earlier posts:

“Agence France-Presse Claims Twitter’s Terms of Use Authorize Its Use of Photographs Posted to TwitPic”

“Twitter Clarifies Usage Rules, but AFP Still Claims Unbridled Right to Use Content Posted to ‘Twitter/TwitPic’” (I blogged that AFP’s position was a stretch, but this post at duckrabbit contains a link to the oral argument, which will give you a flavor of how incredulous the court was at AFP’s argument that it had a license through the Twitter or Twitpic terms: “AFP, CNN, Getty, ABC, V Morel, why this case matters to all professional photographers or why Getty could be selling your photos without you even knowing …“)

Earlier coverage of the dispute:

* paidContent: “Lawsuit Tests Whether Twitter Pictures Are Free For The Taking”

* ReadWriteWeb: “Agence France-Presse: “All Your Twitpics Are Belong to Us”

* Techdirt: “AFP Still Not Giving Up On Its Bizarre Claim That Twitpic Images Are Freely Licensed To Anyone”

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Eric’s comments:

This case is a clusterf**k. AFP made numerous mistakes that resulted in infringing photos being injected into the news coverage of a major world crisis, which inadvertently tainted a variety of downstream media properties–all of whom, due to copyright’s strict liability standard, are likely to write checks to Morel. AFP and its unfortunate partners should end their likely-futile and sometimes-silly defense and settle up with Morel so that everyone can move on to more productive endeavors.

Even though the Twitter/Twitpic discussion will get the most attention, I think the court’s discussion about the 1202 liability is the opinion’s most noteworthy aspect. There has been an ongoing schism in the 1202 jurisprudence about whether or not it’s a 1202 violation to copy a copyrighted work without retaining the CMI located somewhere other than in the work itself. This case is a fine example of the problem: when people copied Morel’s photos, they didn’t go back to Twitpic to see what additional CMI might have been presented on the pages alongside the images. Some courts, recognizing the potential trap this creates, have read the 1202 statute narrowly, basically saying that metadata not in the file itself can’t trigger a 1202 violation. I’ve been skeptical about the statutory fidelity of those rulings, but I’ve applauded their efforts to keep 1202 from becoming a backdoor Dastar as Venkat calls it. Other cases, including this one, have rejected these narrow readings of 1202 and indicated that failing to capture and republish metadata outside the file itself could violate 1202. Should more courts jump on this bandwagon, expect 1202 to become the copyright plaintiff’s favorite new toy in 2011.