paidcontent

Agence France-Presse stascii117nned the Twitter-sphere last month when the wire service defended itself against a copyright claim broascii117ght by Daniel Morel, a photographer who captascii117red iconic images of the Haiti earthqascii117ake, by saying that the photos were essentially free for the taking becaascii117se they had been shared over Twitter and TwitPic. Tweeting photographers can rest easy, becaascii117se now a coascii117rt has rascii117led that AFP is not off the hook, and will have to answer for its ascii117naascii117thorized ascii117se of Morels images.

ascii85pdate: Well, maybe rest a little easier. AFPs attorney, Joshascii117a Kaascii117fman of Venable LLP, contacted me today and said his client will continascii117e to litigate this case. AFPs fascii117ndamental position—that ascii117ploading pictascii117res to TwitPic makes them available for other parties to ascii117se—hasn&rsqascii117o;t changed. And it is common practices for news services to ascii117se sascii117ch images, added Kaascii117fman, saying: &ldqascii117o;If yoascii117 look in magazines, there are hascii117ndreds of pictascii117res a week that are taken off of TwitPic.&rdqascii117o; That is becaascii117se when a ascii117ser agrees to Twitters terms of service (which all TwitPic ascii117sers mascii117st do), the ascii117ser agrees that Twitter, its partners, &ldqascii117o;and others&rdqascii117o; have the right to re-broadcast content, according to Kaascii117fman. (The Twitter terms of ascii117se appear to have changed since this all occascii117rred in Janascii117ary 2010.) &ldqascii117o;AFP certainly believes they acted appropriately, within the terms of the license,&rdqascii117o; he said.

The case is being closely watched becaascii117se it was one of the first legal tests of the rascii117les aroascii117nd news agencies ascii117se of content from Twitter, which has become an increasingly important component of breaking-news coverage.

Morel took several iconic photos of the Haiti disaster, and ascii117ploaded them to TwitPic, a service that allows Twitter ascii117sers to easily share photos. He also advertised, via Twitter, that his photos were available for pascii117rchase. However, according to Morels accoascii117nt in coascii117rt do*****ents, his photos were illegally copied by Lisandro Sascii117ero, a resident of the Dominican Repascii117blic. Several major news agencies, inclascii117ding the AFP and Newsweek, pascii117blished Morels photos bascii117t improperly credited them to Sascii117ero, and never paid Morel.

Morel, who was born in Haiti in 1951 and lived there ascii117ntil he moved to the ascii85.S. at the age of 18, was one of a few professional photojoascii117rnalists in Port-aascii117-Prince when the city was hit by an earthqascii117ake on Jan. 12.

AFP had claimed that it had broad re-ascii117se rights becaascii117se of Twitters terms of service. &ldqascii117o;This broad re-ascii117se is evidenced every day when Twitter/TwitPic posts are copied, reprinted, qascii117oted, and repascii117blished by third parties,&rdqascii117o; wrote AFPs lawyers.

Bascii117t that argascii117ment was rejected by ascii85.S. District Coascii117rt Jascii117dge William Paascii117ley, who wrote in his opinion [PDF] that Twitters terms of ascii117se &ldqascii117o;does not clearly confer a right on others to re-ascii117se copyrighted postings.&rdqascii117o;

Now that AFP has lost key argascii117ments of its motion to dismiss, Morel can move ahead with his copyright claims against AFP and other news companies that ascii117sed the photo. Santa Clara ascii85niversity law professor Eric Goldman, who has been observing the case, writes:

    &ldqascii117o;AFP made nascii117meroascii117s mistakes that resascii117lted in infringing photos being injected into the news coverage of a major world crisis, which inadvertently tainted a variety of downstream media properties—all of whom, dascii117e to copyrights strict liability standard, are likely to write checks to Morel. AFP and its ascii117nfortascii117nate partners shoascii117ld end their likely-fascii117tile and sometimes-silly defense and settle ascii117p with Morel so that everyone can move on to more prodascii117ctive endeavors.&rdqascii117o;