| NEW YORK
NEW YORK Jan 15 A U.S. judge has found that two
news organizations improperly used images that a photojournalist
had posted to Twitter in one of the first big tests of
intellectual property law involving social media.
Agence France-Presse and The Washington Post infringed on
the copyrights of photographer Daniel Morel in using pictures he
took in the aftermath of the Haiti earthquake in January 2010,
U.S. District Judge Alison Nathan in Manhattan ruled.
While AFP had argued that once the pictures appeared on
Twitter they were freely available, the judge said that
Twitter's terms of service did not give the news agency a
license to publish the images without Morel's permission.
The judge, in a decision released late Monday, partially
granted Morel's summary judgment motion but also limited damages
he could potentially recover. Several other issues in the case
were left to be decided at trial. A trial date has not been set.
The case has garnered wide interest because it is one of the
first to address how images that users make available to the
public through social media can be used by third parties for
Though this case began in 2010, ownership of content on
social media continues to be a hot-button issue. Last month,
Facebook Inc's photo sharing site, Instagram, became the
subject of public outcry after users interpreted changes in its
terms of service to mean Instagram could sell their pictures
without permission. Within days, Instagram backed away from some
of the planned changes.
TERMS OF SERVICE
In the Morel case, the photographer put the Haiti images on
Twitter, and they were then disseminated widely after an AFP
editor discovered them through another Twitter user's account,
according to the ruling.
AFP distributed several of the pictures to Getty Images, the
ruling said. The Washington Post, a Getty client, published four
of the images on its website, according to the ruling.
Getty is part of the litigation but the judge did not make
any determination on the photographer's allegations of copyright
infringement against it, noting that there were other issues yet
to be resolved.
AFP had argued that Twitter's terms of service granted it
the right to use Morel's images.
The judge, though, said that while the service terms do
allow the reposting and rebroadcasting of users' images in
certain circumstances, such as "retweeting" them, it does not
grant a license for commercial use.
Attorneys for AFP were not immediately available for
comment. The Washington Post, a unit of The Washington Post Co
, and Getty also did not immediately respond to requests
Joseph Baio, a partner at Willkie, Farr & Gallagher who
represents Morel, said the ruling proves that images taken from
Twitter without permission cannot be used for commercial
purposes and that the trial will determine the consequences for
Twitter was not a party in the case. "As has always been our
policy, Twitter users own their photos," a Twitter spokesman
In the ruling, Nathan narrowed what Morel can recover from
AFP and Getty for distributing the images.
While Morel had requested what the court said would amount
to "tens or hundreds of millions of dollars" in statutory
damages based on awards for each subscriber that used the
images, the judge said AFP and Getty would only be liable, at
most, for a single statutory damage award per image infringed.
AFP initiated the lawsuit in March 2010 to get a ruling that
it wasn't infringing on copyrights after Morel had accused AFP
of improper use of his pictures. Morel countersued AFP, Getty
and The Washington Post.
The judge refused to grant Morel's motion for summary
judgment on whether AFP, Getty and The Washington Post acted
willfully, as well as whether the media companies violated
Morel's rights under the Digital Millennium Copyright Act. The
act prohibits providing or distributing false copyright
information in order to conceal copyright infringement.
The case is Agence France Presse v. Morel, U.S. District
Court for the Southern District of New York, No. 10-02730.