Late on Monday a Manhattan judge ruled in the Daniel Morel case against AFP and the Washington Post that both news organizations infringed his copyright by republishing images that he posted to Twitter during the Haiti earthquake 2 years ago (download the 58 page ruling from NPPA here).

The case was originally brought against Morel by APF, because he was complaining loudly that they stole his images off Twitter, so he then brought a counterclaim against AFP, Getty Images and the Washington Post. It’s certainly the case to watch when it comes to photography and social media. According to the NPPA blog (read the whole post here):

“Based on the evidence presented to the Court the Twitter TOS do not provide AFP with an excuse for its conduct in this case,” the Court noted in finding that “The Twitter [terms of service] provide that users retain their rights to the content they post — with the exception of the license granted to Twitter and its partners — rebutting AFP’s claim that Twitter intended to confer a license on it to sell Morel’s photographs.”

and

In her well-reasoned 58 page decision Judge Nathan granted Morel partial summary judgment ruling that “AFP and the Post are liable for copyright infringement as to the Photos-at-Issue.” But the court rejected his “arguments regarding the scope of statutory damages available under the Copyright Act and DMCA.” The judge also denied motions for summary judgment with regard to whether the infringements were willful; as well as the “claims for contributory and vicarious copyright liability.”

So, there’s more to come in this case, but everything is looking good for photographers who post images to social media sites, which brings up my next point. Remember when everyone was outraged that he posted breaking news images to twitter in the first place. The attitude was more “that’s what you get for not using proper channels” instead of support for photographers trying to carve out professional use of these services. Jeremy Nicholl didn’t forget and his post on this latest ruling (read it here) recalls this gem from Visa Pour L’Image Director Jean Francois Leroy:

a photographer should never put his images on a social networking site. If you put your image on Twitter or Flickr and find that it’s been stolen by someone else, well… tough.

That’s not unsurprising given JF’s role in packaging and selling stories in the traditional manner and Twitter’s role in simply blasting it out to the internet. The key takeaway for me from all of this is that even Twitter is unsure what it’s business model will look like in the future, but professional photographers who use the service can help shape how these services will work. Help them understand the great value of professionally produced content. It’s still the wild west out there and it’s not going to be pretty, but photographers who experiment and defend their copyright should be applauded.

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9 Comments

  1. Amen, brother Haggart! I agree that there is much to be gained in this wild west of digital content. Photographers need to think like entrepreneurs, in order to capitalize on opportunities that are just coming into being. And defend their copyright like any entrepreneur/small business…

  2. *Applause.*

    Attitudes like Jean-François Leroy’s — that if you put your images out there (on Twitter, facebook, Flickr, etc.) then, “well…tough”– are harsh, un-forward-thinking, and totally unhelpful. The internet IS the wild west, as you say, and those of us in the image-making and image-dissemination businesses should be working together to find ways to bring some order/justice to the lawless territories — not undermining each other.

  4. Here’s hoping these social media site see the need for enlisting the help of agencies to deal with licensing, or having a licensing department themselves. Whosay.com has a good thing going for celebrities. Perhaps we will see the evolution of similar protections and distribution for photographers — professional and amateur alike.

  5. He’s what I think is the key sentence:
    “The Twitter [terms of service] provide that users retain their rights to the content they post — with the exception of the license granted to Twitter and its partners”

    Wanna bet Twitters about to get a lot of new “partners”.

  7. “So, there’s more to come in this case, but everything is looking good for photographers who post images to social media sites”

    The ruling is limited to the Twitter TOS in place at the time of Morel’s posting and nothing regarding photographers being in good shape with respect to “social media sites” should be drawn from the ruling. You have to read each relevant TOS to see what you are giving permission for.

    AFPs reading of the then Twitter TOS did not pass the laugh test. The question is why AFP/WaPo dragged the case out 2 years after the first Judge to handle the case rejected their “you have us a license when you posted” defense. I would say it cost them another $250,000 – $300,000 of legal fees plus Morel’s if the court awards him attorney fees, which it probably will.

  8. It’s called Twitter. This about sums it up. Of course if they wanted to make it beyond blatantly descriptive they could have called it Schmekel Head. Personally, I don’t see the attraction, the benefit, the purpose or any reason for Twitter to exist. Michele Obama received 8,000 tweets the first hour her new Twitter page went up — I’m sure the communication was as meaningful for her as it was for the 8,000 Schmekel heads, and I’m sure she read each Tweet. Today’s top trending (buzz word alert) story is about football star Manti Te’o’s fake Twitter girlfriend. Yeah, Twitter is quite useful. :)

  9. I am interested in how this might eventually affect businesses like Pinterest which are based on infringement.

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