For those of you following the case of Daniel Morel vs AFP and Getty there’s been a not-so-surprising ruling by the judge (on December 23rd) after AFP/Getty asked him to throw out the case.
To recap, Daniel Morel photographed some of the first images from the Haiti earthquake and posted those images on Twitter using a service called TwitPic (twitter has no images). All news agencies monitor twitter for breaking news so when AFP saw the images they tried to license them but were unable to reach Morel so they downloaded them and distributed them anyway (allegedly).
AFP hilariously tried to argue before the judge that they had a license to distribute the images because of the Twitter and TwitPic terms and conditions grants 3rd party licenses. In the transcript you can sense some incredulity coming from the judge as he questions their reasoning on this:
THE COURT: What should I do about the language that says, All images uploaded are copyright their respective owners?
MR. KAUFMAN: That’s true. There is a difference between owning a copyright and having a license granted. No one says that Mr. Morel lost his copyright by posting his images to Twitter/Twitpics. We have never argued that. We are saying that by accepting the terms and conditions, he accepted — he granted a license, and the terms of the license are what is set out in Twitter as to the use of third parties.
THE COURT: Mr. Kaufman, were there a number of news sources who asked Mr. Morel to pay for his pictures?
MR. KAUFMAN: Um-hmm.
THE COURT: Is that a yes?
MR. KAUFMAN: Yes, that is a yes.
THE COURT: Oh, good. All right. So if you want to apply your argument about what everybody else is doing, there were numerous news sources who were paying, right?
In this latest ruling Judge Pauley writes:
By their express language, Twitter’s terms grant a license to use content only to Twitter and its partners. Similarly, Twitpic’s terms grant a license to use photographs only to “Twitpic.com or affiliated sites.” AFP and the Third-Party Defendants do not claim they are partners of Twitter of affiliates of Twitpic licensed under the terms of service. Moreover, the provision that Twitter “encourage[s] broad re-use of Content” does not clearly confer a right on the other users to re-use copyrighted postings. Rather, that permissive language stands in contrast to the express, mandatory terms conferring a “license” and “rights” on Twitter. (See Twitter TOS at 2 (“you grant us a worldwide, non-exclusive, royalty-free license”); Twitter TOS at 3 (“you agree that this license includes the right for Twitter to make such Content available to other companies….”).) Although courts may find a license on a motion to dismiss where “[t]he terms for the governing contracts are clear,” Jasper, 378 F. Supp. 2d at 339, Twitter’s terms of service do not meet that standard. Accordingly, AFP and the Third-Party Defendants do not meet their burden to establish that they had a license to use Morel’s photographs.
and further down
However, AFP and the Third-Party Defendants do not claim that they were partners of sublicensees; rather, they characterize themselves as “users.” Moreover, the fact that Twitter “encourage[s] broad re-use of Content” does not “necessarily require” a Twitpic user to license his photographs to other users. That language is ambiguous and insufficient to establish on the pleadings that Morel “understood that the promisee [Twitter] had [the] intent” to confer a license on other users.
I’ve argued here before, that sitting on the sidelines as these new technologies develop is bad news for photographers. The founders of Twitter and many other social media applications create these services with the intent of shaping them to fit their users needs. That’s become business 101 in the 21st century. The more professional photographers use these services the more they can represent the needs of those users.