Judge Rules AFP Infringed Copyright By Publishing Twitter Photos

by Wendy Davis, Jan 16, 2013, 6:48 PM

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Freelance photographer Daniel Morel was in Haiti in January of 2010 when an earthquake struck. Morel, who previously worked for The Associated Press, shot some pictures and then uploaded them to Twitter.

The wire service Agence France Presse, Getty Images and other media companies including The Washington Post later reposted some of the images. Doing so set in motion a three-year battle over who is allowed to publish images that people post to Twitter.

That dispute was partially resolved this week, when U.S. District Court Judge Alison Nathan in New York ruled that AFP and the Post infringed Morel's copyright. Nathan specifically rejected AFP's argument that it was allowed to use photos on Twitter pursuant to the microblogging site's terms of service. "It suffices to say that based on the evidence presented to the court the Twitter [terms of service] do not provide AFP with an excuse for its conduct in this case," she wrote in a decision issued on Tuesday.

The ruling is a blow to AFP, which was the one to initially escalate the matter by going to court in March of 2010, shortly after Morel's lawyer sent the wire service a cease-and-desist letter. AFP asked a federal court to issue a declaratory judgment stating that the wire service had the right to use Morel's photos because he had posted them on Twitter.

Morel countersued Agence France Presse and other companies for copyright infringement.

At the time, Twitter's terms of service provided that users who submit content to Twitter grant the service "a worldwide non-exclusive, royalty-free license" to distribute that material. But the terms of service also said that users still owned their content and that the purpose of the license was to authorize Twitter to "make your tweets available to the rest of the world and to let others do the same."

Nathan's ruling this week still leaves open several questions, including whether Getty infringed copyright. The ruling also doesn't resolve whether the infringement by AFP and the Post was willful. Nathan ruled that those questions raise factual issues that have to be decided after more evidence has come out.

For its part, the Post, which received the images from Getty and posted four of them, argued that it didn't know the images infringed Morel's copyright. But Morel says that his lawyers notified the newspaper more than once that the photos were infringing. If Morel can prove that the infringement was willful, he might be able to recover more in damages.

 

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