The Legal Lens
with Samuel Lewis
Q. Last month, we
talked about Instagram and the brouhaha over changes to its Terms of Service
(TOS). Has the new TOS gone into
effect?
A. They have, although
it seems the uproar over the TOS has quieted down. Unfortunately, the TOS contains the same language that
caused me concern when we discussed the issue last month.
Q. Have there been any
other recent developments?
A. Well, not with
Instagram. However, there has been
a development in a significant case involving Agence France Presse, Getty, the
Washington Post, photojournalist Daniel Morel and Twitter’s TOS.
Morel was in Haiti in January, 2010, when the earthquake
hit. He then posted some of his
images to Twitter. Shortly after
Morel uploaded the images, they were reposted by another Twitter user. AFP’s Director of Photography for North
and South America found the re-tweeted images and sent eight of Morel’s images to
the AFP photo desk. AFP ultimately
transmitted the photographs to Getty, who in turn provided the images to the
Washington Post (the Post published four of Morel’s images). Because of the way the images were
originally obtained—from a Twitter account other than Morel’s—the images
weren’t even credited to Morel initially.
After learning that the images belonged to Morel, and that
AFP and Getty did not have permission to publish or license the images, AFP
filed a petition against Morel in the U.S. District Court in New York seeking a
declaration that AFP use of Morel’s images was covered by Twitter’s TOS, and
therefore, the AFP did not commit copyright infringement. Morel countersued AFP for copyright
infringement, and also asserted claims of infringement against Getty and the
Washington Post.
On January 14th, U.S. District Judge Alison J. Nathan released a
58-page summary judgment opinion (summary judgment is issued when a court is
able to resolve aspects of the case—and sometimes the entire case— by making
final rulings on legal issues based upon undisputed facts; summary judgment
prevents a court and the parties from wasting time with a trial when there is
no dispute over the facts and it is just a matter of applying the law to those
facts).
Under Twitter’s TOS, users like Morel grant Twitter the
right to make content “available to other companies, organizations or
individuals who partner with Twitter for syndication, broadcast, distribution
or publication of such” content.
Similar to Instagram’s TOS, Twitter’s TOS provides that any such use of
content may be made without compensation to the user who posted the content to
Twitter. AFP contended that this
language was broad enough to give it the right to use images posted to Twitter.
With regard to Twitter’s TOS, the Court ruled squarely in
Morel’s favor. As the Court
explained, “it suffices to say that based on the evidence
presented to the Court the Twitter TOS do not provide AFP with an excuse for its
conduct in this case . . . Put differently, the evidence does not reflect a
clear intent to grant AFP a license to remove [Morel’s images] from Twitter and
license them to third parties . . . .”
The Court went further when addressing both AFP and the Post: “AFP and the Post raise no other
defenses to liability for direct copyright infringement, and, in fact, concede
that if their license defense fails—as the Court has determined that it
does—they are liable for direct copyright infringement.”
Unlike AFP and the Post, Getty also argued that it is not liable
for copyright infringement because it is entitled to the benefit of the
safe-harbor (limited immunity) applicable to online providers under the
DMCA. The Court found that there
is a factual dispute, and thus, Morel will have to proceed to trial against
Getty and let a jury decide if Getty qualifies for the limited immunity under
the DMCA. Similarly, the question
of whether AFP, the Post and Getty are willful infringers is an issue that will
have to be resolved at trial.
Q. This sounds like a good
decision for photographers. Is it?
A. The decision is good
from the standpoint that the Court did not find the language of Twitter’s TOS
to be sufficiently broad to permit agencies like AFP to license the use of the
images to others. While the
Twitter TOS is broad enough to allow Twitter and others to republish the
tweets, including images, it was not interpreted so broadly as to permit AFP or
the Post to use the images without consent (although the way that the next
court interprets the Twitter TOS may be different).
However, the Court’s analysis regarding damages was not so
good for Morel. In fact, the Court
squarely rejected Morel’s theory of damages, which would have resulted in an
award of statutory damages against AFP and Getty “in the tens or hundreds of
millions of dollars.” AFP and
Getty argue that they are only liable for one award of statutory damages each—a
maximum of $30,000 per image for infringement, and up to $150,000 per image for
willful infringement—and not responsible, as Morel contended, for an award of
statutory damages for every subscriber who used the images. The Court ultimately ruled that “AFP
and Getty are, at most, each liable for a single statutory damages award per
work infringed.”
With the Court’s decision on damages, AFP, the Post and
Getty have a considerably better idea as to their possible exposure—the amount
that may be awarded—should the case proceed to trial. Unfortunately, those
damages are considerably less than Morel was seeking in the case.
Q. What should
photographers take away from this decision?
A. If there’s one thing
to take away from the decision, it is the importance of reading the fine print
when using social media sites.
Much of the decision in Morel’s case turned on the Court’s analysis of
the Twitter TOS, and considering each term and phrase within that TOS. However, since the TOS vary from one
social media site to another, the same phrase that tipped the scales in favor
of Morel in Twitter’s TOS might not be present in the TOS for any other social
media site.
Samuel Lewis is a Board Certified Intellectual Property law
specialist and partner at Feldman Gale, P.A. in Miami, Florida, and a
professional photographer who has covered sporting events for more than
twenty-five years. He can be
reached at SLewis@FeldmanGale.com or SLewis@ImageReflex.com.
Note: The information appearing in this blog entry is not, nor is
it intended to be, legal advice, and should not be construed as such. Rather, the information is provided
solely for educational purposes by providing general information about the
law. This blog is not a substitute for legal
advice from an attorney licensed to practice in the state where your business
is based or where you live.
