|: Focus Paper
A US court has recently held two media organisations, Agence France Press (AFP) and The Washington Post, liable for copyright infringement for the unauthorised use of images which had been uploaded by a photojournalist onto his Twitter account. The photographer also has a claim against Getty Images which will be heard, along with some aspects of the claim against AFP and The Washington Post and determined by a jury at a later date.
The Court's decision, albeit from a foreign jurisdiction, is an interesting development regarding the ownership of social media content which is increasingly used in news reporting: only last Wednesday it was reported that the London Evening Standard had used a photo of the helicopter crash in central London, uploaded onto Twitter by Craig Jenner, without first obtaining his authorisation and/or agreeing to any compensation1.
The Alleged Infringement
The 13 images in question depicted the aftermath of the earthquake which devastated Haiti in January 2010. The images were captured on the day of the disaster by the photographer, Daniel Morel, and posted onto Morel's Twitter account (PhotoMorel) using the website "Twitpic".
Shortly thereafter, the photos were re-tweeted by another individual, Lisandro Suero, who indicated that he had "exclusive" images of the earthquakes.
The images were found by AFP and uploaded onto their system for distribution (either by means of its wire or through "ImageForum" - a databank made available to customers). The images were forwarded to Getty and in turn made available to their customers (also by means of a newswire or databank). They were initially attributed to Suero.
The Post received 4 images from Getty and published them on its website, three of which were credited to Suero (along with AFP and Getty), and one which was credited to Morel (again, along with AFP and Getty). By this stage AFP and Getty were alerted to Morel's authorship and had taken some steps to correct the attribution, although clearly not completely.
Morel asserted copyright in the 13 images. This prompted AFP to issue proceedings against Morel, alleging commercial defamation and seeking declaratory relief to the effect that AFP had not infringed Morel's copyright in the images. Morel, in turn, brought a counter-claim for copyright infringement, joining Getty, The Post and television networks CNN, ABC and CBS to the proceedings (all collectively, the Media Parties). More specifically, he asserted that the Media Parties had infringed upon his exclusive rights to reproduce, display publicly, and distribute the images in question.
An attempt by some of the Media Parties to have the proceedings summarily dismissed failed in December 2010, following which the television networks settled their proceedings with Morel.
In 'round two', the parties filed cross-motions seeking summary judgment against each other.
The Third Party Licence Defence
AFP argued that by posting the images on Twitter, Morel had granted AFP a licence to use the images in the manner in which it did. Getty and The Washington Post joined AFP in this argument.
AFP relied upon Twitter's Terms of Service, which among other things govern the treatment of content posted on Twitter (or through Twitpic). AFP contended that the provisions in the Terms of Service evince an intention (by Twitter and the user, in this case Morel) to confer a licence onto other users (in this case, AFP) in respect of the content such as photos.
AFP relied on extracts from the Terms of Service and other relevant policies including:
- The section entitled "Your Rights", which includes the following passages:
1.1 "You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed)."
1.2 "Tip[:] This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same. But what's yours is yours – you own your content."
1.3 "You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use."
1.4 "Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services."
- "You are responsible for your use of the Services, for any Content you provide, and for any consequences thereof, including the use of your Content by other users and our third party partners. You understand that your Content may be rebroadcasted by our partners and if you do not have the right to submit Content for such use, it may subject you to liability...""Tip[:] What you say on Twitter may be viewed all around the world instantly. You are what you Tweet!"
- "We encourage and permit broad re-use of Content."
- "[w]e welcome and encourage the use of Twitter in broadcast."
The Court rejected this argument, finding that the evidence did not in fact demonstrate a clear intention to grant a licence to third parties to appropriate the images from Twitter and license them to others, but rather the very opposite.
In reaching its decision, the Court:
- referred to the Court's prior ruling on the motion to dismiss, which had already considered whether the Terms of Service expressly granted a licence to AFP to use the images and held that they did not.
- noted that much of the language in the Terms of Service cuts against the assertion that third parties can remove content and license it to others without the author's consent, In its reasoning, the Court made specific mention of the following portions:
2.1 "[y]ou retain your rights to any Content you submit, post or display"
2.2 "what's yours is yours – you own your content."
- noted that the Twitter Guidelines do not support AFP's argument that it was the beneficiary of a third party licence to remove content and commercially distribute it. The Court held that, to the extent the Guidelines support the rebroadcasting of Tweets, they stipulate that "content should not be disassociated from the Tweets in which they occur"2.
Other Points of Interest
The Court also considered whether the conduct of AFP, Getty and The Washington Post was wilful in the circumstances. This is significant as the nature of the infringement in the US can affect the damages award received by Morel3.
The Court noted that for conduct to be deemed "wilful", there must be either knowledge that the conduct was infringing, or reckless disregard/wilful blindness to the prospect that the conduct was infringing. In contrast, where an infringement is innocent4, the statutory damages award can be greatly reduced.
The Court had regard to the following conduct:
- The Director of Photography for North and South America at AFP claimed that, at the time of uploading the photos, he believed he had the right to distribute them for news purposes;
- The Director allegedly failed to follow AFP policies regarding the use of material from social media site;
- The Director had allegedly engaged in similar conduct regarding the use of images previously;
- A Getty employee had allegedly seen the photos on Twitter posted by Morel;
- That employee was allegedly made aware of the caption change to the photos (attributing them to Morel instead of Suero), and later a 'kill notice', both sent by AFP;
- Getty had been contacted by Corbis, Morel's representatives, regarding the infringement;
- Morel's lawyers had attempted to notify The Washington Post about the infringement, although it is unclear what correspondence was received by The Washington Post.
Ultimately, the question of each party's knowledge has been left to a jury to resolve.
AFP/Getty's Secondary Liability for Infringements by Others
The Court also left open the possibility that AFP and Getty could be held liable for infringements by downstream users who utilised the images.
If a jury finds that AFP and Getty contributed to the infringement by actively providing the photographs to users, and that they had knowledge of the infringement at the time, both parties could be deemed accessories to the copyright infringement.
There also remains a claim against Getty for vicarious liability. The Court noted that for such a claim to be successful, it was necessary to establish that Getty had "the right and ability to control or supervise the infringing activity" and "a direct financial interest in the exploitation of the copyrighted materials"5. Knowledge of the infringement was not required in this case.
On this issue, the Court indicated that there was evidence that Getty received a financial benefit from licensing the works to other users (in particular those who obtained the images a la carte, rather than as part of a news feed), and that Getty may have had the ability to control infringements by removing the images from its system, enforcing the kill notice or blocking subscribers from its system.
Safe Harbour for "Service Providers"
Getty sought to invoke provisions within the US Digital Millennium Copyright Act (DMCA) spare service providers from liability for copyright infringement in certain circumstances. The equivalent defence in Australia has been the subject of judicial consideration in the recent iiNet litigation6.
The Court explored the meaning of "service provider" and ultimately held it to mean "an entity engaged in facilitating or supporting online access or the activities of users of the internet". Notably, it did not regard a licensor or seller of copyright material as falling within the definition. Getty argued that it merely provided a file hosting service for AFP's images, whilst Morel contended that Getty's actions went beyond that (and fell outside the definition of a service provider), to the point of licensing the images to others. As this was again a question of fact, the Court left this issue for a jury to decide.
Where to from here for the Media?
Importantly for the Media, this case confirms that Twitter's terms of service vest ownership of content in the individual user and do not provide a licence to the world at large to make use of tweeted content.
The media should contact the individual user or Twitter itself if it wishes to licence any content, including photos. The media may also be able to make a fair dealing of the content for the purpose of reporting the news. The issue of "fair use", as it is known in the US, was not raised by The Washington Post as a defence to copyright infringement, possibly because the images were made available for purchase and some of the photos were never correctly attributed to Morel, thus rendering the relevant conduct not "fair".
The issue of notice is also an important matter for media organisations. In circumstances where a media organisation is aware or has been put on notice that the use of certain content has infringed copyright, steps should be taken to cease the infringement (i.e. correct attribution, removal of the content). Failure to do so may result in a higher damages award and may leave the organisation liable as both an infringer and accessory to infringement by downstream users.
2Agence France Presse v. Morel, U.S. District Court for the Southern District of New York, No. 10-02730, at 41 per Judge Nathan.
3For basic copyright infringement, the statutory damages award is between $750 and $30,000 per work: see 17 U.S.C. § 504(c)(1). For wilful infringement, the statutory damages award can be increased to up to $150,000 per work: see 17 U.S.C. § 504(c)(2).
4Where an infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright", the statutory damages award can be reduced, but no less than $200 per work: see 17 U.S.C. § 504(c)(2). A similar provision exists in Australia in the Copyright Act 1968 (Cth), where if the infringer "was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright", the plaintiff is not entitled to damages (but can still recover account of profits and may have other remedies available, i.e. an injunction): see s 115(3).
5Agence France Presse v. Morel, U.S. District Court for the Southern District of New York, No. 10-02730, at 41 per Judge Nathan.
6Roadshow Films Pty Ltd v iiNet Ltd  HCA 16.
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