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Owning your own content pays off

A photojournalist receives a substantial judgment for copyright violation of photos posted to Twitter, giving photographers hope for future deterrence and showing that Terms of Service really do matter.

Copyright Law Book Photo by: Brad Trahan

After experiencing the 2010 earthquake in Haiti, photojournalist Daniel Morel posted several photos of the devastation to his Twitter page in hopes of selling them to news agencies and other potential buyers.  Instead, Lisandro Suero, a resident of the Dominican Republic, copied the photos and sold them to Agence France-Presse (AFP) and Getty Images as his own, in violation of Twitter’s copyright policy.  The photos eventually surfaced in news sources such as The Washington Post, leading Morel to file a lawsuit for copyright infringement against AFP and Getty Images.

Judge Alison Nathan, District Court judge for the Southern District of New York, ruled (pdf) in January of 2013 that AFP and Getty Images did in fact infringe on Morel’s copyright of his Twitter photos, and a jury recently awarded Morel the maximum statutory damages of over $1.2 million.  Thanks to Twitter’s Terms of Service and content policy, Morel and other users own the content they post to the site, giving them remedies for unauthorized sales of their photos.

Judge Nathan’s ruling and the jury’s decision to award such hefty damages is viewed as a major copyright victory in photography circles.

The unauthorized publication of photos on the internet without proper attribution to the original photographer has become a growing problem, causing financial strife for many photographers who usually have no remedy due to the expense of pursuing copyright claims.  Judge Nathan’s ruling and the jury’s decision to award such hefty damages is viewed as a major copyright victory in photography circles, allowing other photographers to hold infringers liable and to hopefully deter similar copyright infringements in the future.

In a statement by Mickey Osterreicher, general counsel to the National Press Photographers Association, the ruling also “reinforced photographers’ rights in the era of social media.”  Osterreicher hopes that the ruling “sends a message” and hopefully initiates a “cultural change so that once again photographs are valued.”  Getty and AFP were apparently selling Morel’s photos for only $45.00.  According to Morel, “[n]ot only did these agencies steal the photos, but they were also giving them away.”

In Morel’s case, the Twitter Terms of Service were “not intended to confer a benefit on the world-at-large to remove content from Twitter and commercially distribute it.”

The initial case determining whether AFP/Getty was liable turned on the parties’ affirmative defenses: that by posting the photos on Twitpic, Morel granted them a license; Getty was entitled to coverage under the DMCA safe-harbor provision; and that Getty did not engage in “volitional conduct sufficient to impose liability.”

Judge Nathan based her opinion on the fact that Morel uploaded his photos through his Twitpic account, a Twitter-based photo sharing site.  Twitpic’s Terms of Service (TOS) state that “[b]y uploading your photos to Twitpic, you give Twitpic permission to use or distribute your photos on Twitpic.com.”  Despite granting this license, users cannot publish another user’s content “for any commercial purpose” without that user’s permission and the user retains all ownership rights to their content – all images are copyrighted to their respective owners.

In Morel’s case, the TOS were “not intended to confer a benefit on the world-at-large to remove content from Twitter and commercially distribute it.”  According to Judge Nathan, AFP’s acquisition of the photos from a third party is not similar to a retweet and is a commercial distribution – “a license for one use does not equate to a license for all uses.”  By purchasing the photos from Suero and then reselling them to news agencies, AFP and Getty Images, as third parties, exceeded the scope of the initial license granted by Twitpic.

Evidence that Getty actively licensed Morel’s photos suggested that Getty acted “not as a passive host or online facilitator of access to AFP’s images, but rather as a licensor of its own rights.”

The Digital Millennium Copyright Act (“DMCA”) safe-harbor provision that Getty attempted to invoke was created by the Online Copyright Infringement Liability Limitation Act “to clarify the liability faced by service providers who transmit potentially infringing material over their networks.”  This provision can only be used if the party is a service provider.  After carefully analyzing the definitions of “service” and “provider,” Judge Nathan determined that service providers are entities that facilitate, support, or enable online access or activities of internet users, not entities that are directly licensing copyrighted material online.

In its motion for summary judgment, Getty claimed there was no question of material fact that it was a hosting service, or facilitator, of images for AFP, who in turn distributes the photos to news agencies.  Judge Nathan ruled, however, that a jury could infer that Getty was not a host of AFP’s images and therefore was not a service provider.  Evidence that Getty actively licensed Morel’s photos suggested that Getty acted “not as a passive host or online facilitator of access to AFP’s images, but rather as a licensor of its own rights.”

Getty’s efforts to distribute Morel’s photos, as well as its license agreement with AFP and other charitable organizations, showed sufficient “volitional conduct” to defeat Getty’s summary judgment motion.  Judge Nathan also held that there were genuine issues of material fact existing for AFP’s, Getty’s, and The Washington Post’s willful infringement of Morel’s copyright.

Contact between AFP and Morel asking for photo licenses and name-calling in emails showed the defendants’ willful actions and determined sufficient deterrence of future violations.

Morel’s claims went to the jury for damages determinations due to Judge Nathan’s granting summary judgment in his favor, finding that AFP and The Washington Post were liable for copyright infringement.

In determining damages, jurors were told in closing arguments that they had six issues to consider, including  ”whether the defendants [AFP/Getty] acted willfully,” “what it would take to deter the corporations from infringing upon the work of other photojournalists,” and the attitude of the parties in question.  Contact between AFP and Morel asking for photo licenses and name-calling in emails showed the jury enough to address the defendants’ willful actions and determine sufficient deterrence of future violations.  The jury awarded Morel the maximum damages possible: a rate of $275 per day times 1,000 for copyright infringement, with an additional $400,000 for sixteen violations of the DMCA on eight photos.

According to Morel’s attorney Joseph Baio, this is the first time that “these defendants or any other major digital licensor of photography have been found liable for willful violations of the Copyright Act.”  Baio and Morel hope that in the future, photojournalists facing similar situations will not have to “suffer through the same three and a half year ordeal” Morel experienced, giving photojournalists adequate compensation and respect for their work.

Sarah Bowman, Former Associate Editor
About Sarah Bowman, Former Associate Editor (9 Articles)
Sarah Bowman served as an Associate Editor for the Campbell Law Observer. She was also the Moot Court Chair for the Old Kivett Advocacy Council and the Vice Dean for Delta Theta Phi Law Fraternity. She is originally from Asheville, North Carolina, and graduated from University of North Carolina Chapel Hill in 2011 with a bachelor’s degree in History and Political Science and a minor in Spanish. Her previous legal employment includes summer internships with the Property Control Section of the N.C. Department of Justice, the Gillett-Stallings Law Office, and a research position as a Webster’s Scholar for Professor Patrick Hetrick. Sarah graduated from Campbell Law School in May 2014.
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