When a photographer “tweets” her photographs on Twitter or a videographer posts his videos on Vimeo or YouTube, the works become available to be used by anyone in the world, right? After all, isn’t sharing the whole point of social media? In a legal sense, are the photographer and videographer not granting to the world an implied license to use their work by using social media to exhibit them?
That was essentially the argument advanced – unsuccessfully – on behalf of Agence France Presse (“AFP”) in Agence France Presse v. Morel, 2011 WL 147718 (S.D.N.Y.). The case, in which summary judgment was granted earlier this year, has garnered much interest. It is one of the only cases to address if, when and how user generated online content can be used for commercial purposes by third parties.
The facts of the case are as follows. Daniel Morel, the defendant and counterclaimant, was a photojournalist who took several iconic photographs of the aftermath of the 2010 earthquake in Haiti and then posted the photos on his Twitter account. Soon after he posted them, AFP obtained them from a third party, transmitted them to Getty Images which, in turn, then “licensed” the photos to news agencies like CNN. Morel accused the news agencies, Getty and AFP of infringing his copyright in the photos. AFP pre-emptively brought an action for a declaratory judgment that it had not infringed copyright, claiming that Morel had granted them an implied license in the photos when he posted them on Twitter. Morel counterclaimed for copyright infringement against AFP, brought third party claims against the news agencies and others and then sought summary judgment.