By Dan Kennedy • The press, politics, technology, culture and other passions

Haitian copyright case turns on Twitter’s TOS

In a lawsuit filed in U.S. District Court in New York, Agence France Presse (AFP) claims that it did not violate photojournalist Daniel Morel’s copyright by distributing his images from the scene of the Haitian earthquake because Morel had posted his photos to Twitter, via TwitPic. AFP argues that by posting to Twitter, Morel was bound by Twitter’s terms of service (TOS), and that he therefore granted “a nonexclusive license to use his photographs.” The relevant section in the TOS would appear to be this:

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).

As I reported on Saturday, AFP has sued Morel, charging him with “antagonistic assertion of rights.” I have since received copies of AFP’s complaint (pdf) and Morel’s answer (pdf). It’s a fascinating case, involving the question of how a journalist can transmit his work under difficult conditions without giving up his rights. (Last month I took down one of Morel’s photos from Media Nation after hearing from his lawyer, Barbara Hoffman of New York.)

The AFP suit, filed by attorneys Joshua Kaufman of Washington and Brendan LeMoult of New York, also charges Morel with “commercial defamation.” According to their complaint, Morel, through Hoffman, undermined AFP’s reputation even though the agency took steps to cease distribution of Morel’s work once Hoffman informed it that Morel’s copyright had been infringed. According to AFP’s suit:

Even though it believes it acted under an appropriate license, when AFP was contacted by Mr. Morel’s attorney indicating that he believed the publication of the photographs was a copyright infringement, AFP again acted in good faith to cease publication and distribution of the photographs and notified its subscribers that the photographs should not be published or distributed.

In response to AFP’s eight-page complaint, Hoffman submitted a 66-page rebuttal. I have not had an opportunity to read it in detail. But clearly the heart of AFP’s complaint revolves around Twitter’s TOS. Hoffman writes that Morel found himself working under difficult conditions after the earthquake and trying to find a way to transmit his photos. The manager of the hotel where he was staying helped him set up a Twitter account. She continues: “Mr. Morel had no prior experience
with Twitter, the social networking site and did not read the Terms of Service.”

Nor has any of us, I suspect. So I’m sympathetic to Morel on those grounds. On the other hand, if AFP really did act “in good faith” to halt distribution of Morel’s photos once it had been notified, it is difficult to understand why Morel kept pushing his claim.

Thus Hoffman also includes a long section aimed at proving AFP did not, in fact, act in good faith, taking 13 images from the TwitPic page of a Dominican named Lisandro Suero. Suero, she writes, had “pirated” the pictures, and AFP acted “willfully or with reckless disregard of Mr. Morel’s rights, in its rush to receive credit for the news-breaking photographs to the world” by failing to verify Suero’s bona fides.

Ironically, Morel’s photos are included in Hoffman’s filing, which is a public court document. So if you want to have a look at them, all you have to do is follow the link to her rebuttal, above.

All in all, a pretty interesting case.

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  1. BP Myers

    I’m probably reading it wrong, but don’t Twitter’s terms and conditions apply to Twitter alone?

    For example, when they say “you grant us a worldwide, non-exclusive, royalty-free license,” you are (ostensibly) ceding Twitter (and no doubt their affiliated companies) the right to use the photos, not some third-party Tom, Dick, or Harry.

    It’s actually boilerplace language found in most message boards that allow you to post pics, most likely to protect the message board themselves against any claim of copyright violation.

  2. L.K. Collins

    Copyright and trademark law on the internet is pretty amorphous at this time. Not much difference in the basic laws and not much case law defining the margins.

    The problems stem from those who assume that if it is on the internet it is fair game. No where in the law is that supported.

    Dan’s dear friend Harvey’s perspective might be useful in understanding this issue.

  3. BP Myers

    @L.K. Collins says: Copyright and trademark law on the internet is pretty amorphous at this time.

    It’s my understanding that the law makes no distinction between the Internet or any other platform, and that the law is the law.

    Do I misunderstand?

    If you’re saying that copyright and trademark infringement is rife on the Internet, on that, we can agree.

  4. Where I come from (Sweden) the copyright for a picture is easy; the person who created/shot the picture is the copyrightholder. That´s it!
    If anyone wants to use it, for profit or nonprofit, they have to contact the copyrightholder to pay/get approval for that.
    No matter what. Thats easy!

    Routined publishers also sometimes break the rules, but they do know that theyre doing it. They dont claim the right for a picture they have not payed for.
    There should be no difference wether published in print or on the internet, of course.

    • Dan Kennedy

      @Torbjorn: Thank you for writing. With respect, I would suggest that the dispute between AFP and Morel would not be solved by Swedish law, since Morel did, in fact, sign away some of his rights when he posted to Twitter/TwitPic. The question is whether that action then gave AFP the right to distribute his photos.

  5. L.K. Collins

    BPMeyers, your statements are correct, copyright and trademark law are as written, and the internet pirate tenes to either ignore or deliberately disregard the conventions.

    See: Shepherd Fairey, his Obama HOPE poster, and his lame excuses for ignoring the obvious copyright infringements.

    I sincerely hope that, along with the First Amendment discussions that Dan has with his journalism students, that he has equally ardent and pointed discussions on copyrights and trade marks.

    It would be sad if the next generation hasn’t a clue as to what is right and what is wrong…not that this one does, either.

    • Dan Kennedy

      If Shepard Fairey is not protected by fair use, then fair use has lost all meaning. I suspect he is being singled out because he’s a hypocrite and a self-confessed liar. But if he’s a copyright-infringer, then so was Andy Warhol. And he wasn’t.

      There is almost nothing journalists need to know about trademark law unless they are going into business for themselves.

  6. BP Myers

    @Dan says: But if he’s a copyright-infringer, then so was Andy Warhol. And he wasn’t.

    If Andy Warhol wasn’t a copyright-infringer, then there’s no such thing as copy-right infringement. Not sure why Cambell’s didn’t sue, though I suspect that whatever buzz was generated from his art was good for the company.

    But Warhol was sued by the photographer who took the photo his “Flowers” series was based on, and ended up paying her off in art.

    It is funny and ironic to see the Andy Warhol Foundation today cling tightly to their own copyrights of Warhol’s copy-right infringed work.

    • Dan Kennedy

      @BP: What Warhol did was “transformative” under the fair-use doctrine. You can always sue, and you can always choose to settle. And sometimes judges and juries make bad decisions. But the doctrine is the doctrine. He took copyrighted material and transformed it into something else, which is generally enough for protection purposes.

      Can’t put my hands on it instantly, but interestingly enough, a major court case on fair use that found against a guy who was selling Three Stooges T-shirts specifically cites Warhol’s Marilyn Monroe series. The Three Stooges guy didn’t do anything but use a picture of the Stooges, and the judge said that made his case different from what Warhol did.

  7. BP Myers

    @Dan Kennedy says: What Warhol did was “transformative” under the fair-use doctrine.

    Ironic term, that, in that Warhol didn’t “transform” the work at all, he merely copied it.

    Rauschenberg was “transformative.” Warhol was a Xerox machine.

    But we’ll never really know in the Cambell’s Soup example, as it was never adjudicated. But apparently, his use of the “Flowers” photograph wasn’t transformative, or at least he opted to settle.

    Don’t get me wrong, I love Warhol’s work and deem it important. But had I been the photographer who snapped the original Jackie photo, or the graphic artist who came up with the original Cambpell’s Soup can, or the Brillo box design, I might be feeling a little ripped off.

  8. BP Myers

    @Dan: Nyuck nyuck nyuck.

    And thanks.

  9. ayanna morel

    I am Daniel Morel’s daughter, and I believe that it is wrong to take some ones picture and sell it and not give that person credit. It is the same thing with Limewire and Frostwire, if someone is caught downloading songs then they either will get fined or arrested BECAUSE the artist itself did not get any credit. Therefore my father had pictures stolen. from him and the person sold therefore my father SHOULD get credit for the pictures of his that are sold. Even though they were on Twitter and any one could take them, that does give the right to anyone to take them AND SELL them without his permission. And that goes or anybody who posts picture online anywhere. So I believe my Father should get the money back or at least some of it back it is unfair. It is irresponsible for anyone to take these picture. Papa I got your back.

    Ayanna Morel

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