US case breaks ground for copyright in social media

By Manoj K Singh, Singh & Associates, Advocates & Solicitors
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If you think stealing a photo uploaded on Twitter can’t land you in court, a case decided by a US court in January may change your view. The case pitted Agence France-Presse (AFP) against Daniel Morel, a photojournalist who had shared photographs on the social media platform.

Social media allow internet users to create and exchange content in forms such as text, audio, video, images and podcasts via social networks, bookmarking sites, social news-services, media sharing, microblogging and blog comments and forums.

Facts of the case

Morel, a resident of Haiti, was a photojournalist with over 25 years experience, who was working in Port-au-Prince when a devastating earthquake rocked Haiti on 12 January 2010.

Manoj Singh
Manoj Singh

At 16:45 he began photographing the devastation and at 17:20 he opened a Twitter account called PhotoMorel, tweeted that he had exclusive earthquake pictures, and uploaded 13 images on Twitpic. At about 17:28 one Lisandro Suero hijacked the 13 images, uploaded them to his Twitpic account, and tweeted that he too had exclusive pictures. At about 21:45 AFP copied Morel’s images from Suero’s account and placed them on its Image Forum database. AFP also transmitted Morel’s photos to Getty Images with the credit AFP/Getty/Lisandro Suero.

On 26 March 2010 AFP filed a suit claiming Morel had “made demands that amount to an antagonistic assertion of rights”. AFP also accused Morel of making “false and disparaging statements” and asked the court to award damages and costs for those statements.

On 12 April 2010 Morel filed a counterclaim, claiming direct and contributory infringement of his copyright by AFP. AFP’s response – that it had an express license to use Morel’s photos – was premised on Twitter’s terms of service (ToS), which state that Twitter has been granted a non-exclusive, royalty-free licence along with the right to sub-license the content posted on its platform in any and all media and distribution platforms.

Twitter’s ToS state that it has the right to make the content posted on its website available for all companies or individuals that partner with Twitter. Similarly, Twitpic’s ToS state that a licence to use uploaded images has been granted to Twitpic and affiliated sites. However, as the judge in an earlier proceeding rightly noted, the licence had been granted to Twitter and its partners as well as Twitpic. As AFP had not even claimed that it was a partner organization or affiliated site of Twitpic, the licence granted to Twitter and Twitpic by Morel does not extend to AFP.

Findings of the court

The court ruled that AFP and The Washington Post, which published Morel’s pictures after they had been distributed by Getty, infringed Morel’s copyright by their unauthorized use of his pictures. The case turns on whether Twitter’s ToS gave AFP a right to download and redistribute the images. After examining Twitter’s ToS, US District Judge Alison Nathan ruled that “the plain language of Twitter’s ToS does not support finding a licence covering AFP’s or The Washington Post’s conduct”. She also stated that the media cannot sell photographs grabbed from Twitter.

Twitpic prohibits “improper use” of any data from Twitpic that are not available through authorized channels unless explicit permission is given. Its ToS state: “By uploading your images to Twitpic you give Twitpic permission to use or distribute your images on Twitpic.com or affiliated sites” and that the image owners hold the copyright to all images uploaded.

The Indian perspective

Section 30 of the Copyright Act, 1957, as amended in 2012, no longer requires a licence agreement to be signed by the copyright owner/ authorized agent. However, Morel granted a licence only to Twitter and Twitpic and not to AFP.

Indian courts have acknowledged the concept of contributory infringement if copyrighted material has been uploaded on a website and the owner of the platform on which the infringement occurred had knowledge of the infringement. In the Morel case, AFP denied the allegation by stating that it had an express licence to use Morel’s images and the court rejected AFP’s defence.

AFP claimed that it was a third-party beneficiary of the licence agreement between Morel and Twitter. The court rejected this, stating that Twitter confers rights on partners and sub-licensees and AFP was neither. Indian courts have similarly recognized that a third party cannot sue for damages on a contract to which it is not a party.

The Morel ruling, together with the recent changes in Indian copyright law, will play a pivotal role in protecting rights of the individual in the fast-growing social media circle, which has become an integral part of contemporary society. The proper definition of infringement and the acknowledgment of the rights of individuals will lead to a social media circle where everybody feels safe.

Manoj K Singh is the founding partner of Singh & Associates, a full-service international law firm with headquarters in New Delhi.

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