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.
AFP argued that it was a third-party beneficiary of Morel’s license to Twitter to use and display his photographs and, as such, was insulated from liability for infringement.
In the past, Twitter has gone to court on behalf of its users’ ownership rights in their tweets. In 2012, Twitter resisted attempts by New York prosecutors to obtain from Twitter incriminating “tweets” posted by a participant in the Occupy Wall Street protests, arguing that users, not Twitter, are the “owners” of their content. Twitter has not participated in the AFP case, however.
Agence France v. Morel is scheduled for trial in September of this year on the issues left over from the summary judgment, including whether the infringement was wilful, whether Getty Images is liable and the quantum of damages to be paid.