There was an interesting decision in the US recently about the intellectual property (IP) implications of posting a photo on Twitter.   The facts were that a professional photographer by the name of Daniel Morel – a man who has apparently spent over 25 years in Haiti – posted dramatic photos of the earthquake that struck Haiti in January 2010 shortly after the event. Morel posted his photos on Twitter's Twitpic service, saying that he had 'exclusive earthquake photos'. Although no copyright notice appeared on the photos, the name Morel did appear on the Twitpic page.

Because the earthquake was major news, a number of media companies contacted Morel and asked him for permission to use the pictures.  Agence France-Presse (AFP) - a news agency that offers an international photo service - however simply downloaded 13 of Morel's  photos  on to its 'Image Forum', and then transmitted them to the company Getty Images,  which in turn licensed them to  various newspapers including The Washington Post.  In the circumstances, the court had to decide whether AGP's conduct constituted copyright infringement.

A photograph is protected by the law of copyright and in terms of the South African Copyright Act photos form part of a larger category, namely "artistic works". The owner of the copyright in a photo is generally the photographer, and the owner has the exclusive right to do various things, for example, to reproduce the photo or to publish the photo. There are certain exceptions to the owner's rights as discussed below.

During the court proceedings, AFP did not contest Morel's copyright claims in the photos. The company's argument, however, was that it was entitled to use the photos because they were freely available on Twitter.  As a result, Twitter's Terms of Service became very relevant. These terms included the following:

"By grant us a worldwide, non-exclusive, royalty-free licence... to use, copy... such content", followed by, "Tip: This licence is you authorizing us to make your Tweets available to the rest of the world. But what's yours is yours – you own the content";

"We encourage and permit broad re-usage of content" "Twitter will have the right to make the content available to companies 'who partner with Twitter', as well as a licence to use photos on ' or affiliated sites".

In his judgement the judge said that AFP was neither a partner nor an affiliate of Twitter's.  He said further that, simply because Twitter encourages sharing, it does not follow that the person posting the content has waived all their rights.  He said that Twitter's Terms of Service make it quite clear that the person who posts the photos owns the photos.  He said that, whilst the Terms of Service make it clear that the user who posts photos does allow the re-posting or re-broadcasting of images in certain circumstances, such as re-tweeting, the user does not grant a licence to others for commercial use.  The judge also said that it was self-evident that the unauthorised commercial use of the photos would impair the photographer's ability to license the photos, and dilute the value of their IP.

In the circumstances, APF's defence of having a licence to use the photos failed. The company's defence that it was a so-called 'third party beneficiary' of an agreement between Twitter and Morel also failed because clearly Morel had never understood that Twitter was granting rights to other parties. Therefore, the judge found that Morel's claim of copyright infringement had to succeed.  As for the issue of damages, this was left over for determination by a jury, although it is anticipated that the damages could be in the order of US$1.2 million.

There has been considerable commentary on this case, because it is thought to be the first decision that deals with this issue.  Until now most of the focus has been on the question of whether the people who post material like photos on social media sites may be infringing copyright, rather than whether the people using that material are liable.

It has been pointed out that Twitter could very simply change its Terms of Service to make it quite clear that the person posting content agrees to its use for commercial purposes.  However, there has also been mention of the fact that, when Facebook's photo sharing site, Instagram, made certain changes to its Terms of Service - which were interpreted to mean that Instagram could sell pictures that had been posted on the service, even without the user's permission – there was such an outcry that Facebook quickly backed down.

As mentioned, there are certain exceptions relating to the rights of the owner of the copyright in a photo. The South African Copyright Act states that the 'fair dealing' defence which enable newspapers and other media to make unauthorised use of written works without permission,  provided that they are  used for reporting current events and provided that the source is credited, does also apply to artistic works to the extent that it can. It seems that a 'reporting current events' defence can be applied to photographs. Therefore, the question arises: Would such a defence apply if a case like Morel came up in South Africa? It's hard to say, but I suspect not for one very simple reason – it seems to me that it would not be regarded as 'fair dealing' for a media company to take a photo without paying for it, when it is clearly the industry norm to pay for photos.

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