The risks and rewards of the Twitter cookie jar

Social media platforms
like Twitter are a great way of getting your content out to a large
audience. However, managing the content
once it is out there can be a little challenging. We see this in
Agence
France Presse v Morel
769 F.Supp.2d 295 (S.D.N.Y. 2011) involving a dispute
between a photojournalist and a news agency accused of infringing copyright of
his photos.

The earthquake
photos

Morel is a
professional photojournalist who has worked in Haiti for many years. He
happened to be in Port au Prince on 12 January 2010 when an earthquake hit the
city. He took some photos of some of the immediate devastation.

At the time some
internet services were still available. He set up a Twitter account and a
Twitpic account under the twitter handle @photomorel. That afternoon Morel
uploaded his photos on Twitpic, posted on Twitter that he had ‘‘exclusive
earthquake photos,” and linked his Twitter page to his Twitpic page. The
photos themselves didn’t have copyright notices although his Twitpic page did.

It seems that Morel
posted the photos on the internet as he wanted to break the news of the
earthquake. He wanted to retain copyright in his images. And he wanted
acknowledgement and compensation for his efforts. This is understandable. He is
after all a professional photojournalist.

Distribution

Lisandro Suero,
a resident of the Dominican Republic, copied the photographs and posted them on
his own Twitpic page with no attribution to Morel.

Agence France
Presse (AFP) is a French news agency that offers an international photo service
to media worldwide, primarily newspapers. AFP downloaded Morel’s photographs
from Suero’s Twitpic page.

AFP placed
Morel’s photographs on its online photo database and transmitted them to Getty,
an image licensing company. Getty then licensed Morel’s photos to numerous
third-party news agencies, including CBS and CNN. 

Licensing

Morel is
represented exclusively by photography agency Corbis, Inc.  Corbis acts as Morel’s worldwide licensing
agent for images he submits to Corbis. Corbis is a direct competitor of Getty. On
13 January 2010, the day after Morel posted his photos on Twitter, he sent
photos to Corbis who then posted them for licensing that afternoon.

The next day,
Corbis emailed Getty asserting exclusive rights to Morel’s photos.  There appears to have been further
correspondence between the various parties culminating in AFP seeking
declaratory judgement stating that it did not infringe Morel’s copyright in his
photographs.  Morel then brought
counterclaims and third party complaints against various parties.  

AFP said that
it had an express license to use Morel’s images.  In the alternative they said that they were
third-party beneficiaries of a license agreement between Morel and Twitter. 

In the court
case that followed, a United States District Court found that AFP did not have
an express licence to use Morel’s content. Twitter’s terms of service grant a licence
to use content only to Twitter and its partners. AFP did not claim to be a
partner of Twitter. As a Twitter user they were welcome to retweet or link to
Morel’s content but not copy it the way they did.  

AFP was not a
third-party beneficiary either. Morel had only licensed his content to Twitter
and its partners. Morel didn’t intend that Twitter permit AFP to download Morel’s
content and licence it to others. 

Careful while uploading

It is not clear
from the case why Morel set up a Twitter account rather than immediately email
the images directly to his worldwide agent Corbis. There was probably a very short window to get
his photos out to the world and so Twitter was the channel of choice. 

Social media is
a good mechanism for getting material out to a wide audience. However, in particularly newsworthy cases,
the distribution of your content can develop a life of its own. Perhaps Morel
should have edited his photos to include attribution and copyright material
before uploading to Twitter. Then the copies that Suero made would have
included attribution to Morel.

There is a
message here for media outlets and others who use others’ content. Just because content is available on a
publicly accessible network does not mean that the content can be used for
commercial purposes.

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