Agence France-Presse Claims Twitter's Terms of Use Authorize Its Use of Photographs Posted to TwitPic -- Agence France-Presse v. Morel
[Post by Venkat]
Agence France-Presse v. Morel, Case No. 10-civ-2730 (S.D.N.Y.) (March 26, 2010)
The Agence France-Presse (AFP) is involved in litigation over photographs it acquired through Twitter. This could turn into a debacle for AFP, if it hasn't already reached that point.
Background: As described in the photographer's pleadings, Daniel Morel is a photographer who has significant experience working as a photojournalist in Haiti. In the aftermath of the earthquake, he took photographs. He then uploaded (through the help of a friend) some photographs to TwitPic. Another photographer based in the Dominican Republic (Lisandro Suero) apparently copied the images to his own TwitPic account and then purported to license the images. [correction: Suero is not a photographer and provided as contact information, a Dominican phone number (which would not work in Haiti).]
AFP obtained these images (through what it thought was a license from Suero), used the images itself, and then licensed the images to Getty for further distribution. Many publications ran the photos and credited AFP/Suero. Morel got wind of this and started sending around cease and desist letters. AFP then filed a declaratory judgment action asserting commercial defamation and seeking a declaration of non-infringement. Its argument on the issue of whether it had permission to use the photos was that AFP did indeed have permission, and this permission was based on a license contained in the Twitter terms of service! Morel turned around and filed counterclaims for infringement. (A bunch of other media entities are all embroiled in the dispute and they've been indemnified by AFP.)
Thoughts: As an initial matter, it's worth mentioning that if someone is found to have infringed, their good faith (while relevant to damages) is irrelevant to infringement. AFP's request for a finding of non-infringement does not argue that it obtained some sort of license from Suero that it turned out Suero was not capable of granting. Instead AFP argues that "by posting his photographs on Twitter, Mr. Morel was granting the requisite license to Twitter and third parties to use, copy, publish, display and distribute those photographs." There are two basic problems with AFP's position (that it obtained a license through the posting of images through Twitter).
First, as Mike Masnick at Techdirt notes, the images were uploaded to TwitPic, and not Twitter. These ...
[Post by Venkat]
Agence France-Presse v. Morel, Case No. 10-civ-2730 (S.D.N.Y.) (March 26, 2010)
The Agence France-Presse (AFP) is involved in litigation over photographs it acquired through Twitter. This could turn into a debacle for AFP, if it hasn't already reached that point.
Background: As described in the photographer's pleadings, Daniel Morel is a photographer who has significant experience working as a photojournalist in Haiti. In the aftermath of the earthquake, he took photographs. He then uploaded (through the help of a friend) some photographs to TwitPic. Another photographer based in the Dominican Republic (Lisandro Suero) apparently copied the images to his own TwitPic account and then purported to license the images. [correction: Suero is not a photographer and provided as contact information, a Dominican phone number (which would not work in Haiti).]
AFP obtained these images (through what it thought was a license from Suero), used the images itself, and then licensed the images to Getty for further distribution. Many publications ran the photos and credited AFP/Suero. Morel got wind of this and started sending around cease and desist letters. AFP then filed a declaratory judgment action asserting commercial defamation and seeking a declaration of non-infringement. Its argument on the issue of whether it had permission to use the photos was that AFP did indeed have permission, and this permission was based on a license contained in the Twitter terms of service! Morel turned around and filed counterclaims for infringement. (A bunch of other media entities are all embroiled in the dispute and they've been indemnified by AFP.)
Thoughts: As an initial matter, it's worth mentioning that if someone is found to have infringed, their good faith (while relevant to damages) is irrelevant to infringement. AFP's request for a finding of non-infringement does not argue that it obtained some sort of license from Suero that it turned out Suero was not capable of granting. Instead AFP argues that "by posting his photographs on Twitter, Mr. Morel was granting the requisite license to Twitter and third parties to use, copy, publish, display and distribute those photographs." There are two basic problems with AFP's position (that it obtained a license through the posting of images through Twitter).
First, as Mike Masnick at Techdirt notes, the images were uploaded to TwitPic, and not Twitter. These ...
Abinyah's iP
