We all enjoy when our tweets become popular and travel the globe through retweets. Have you ever wondered what happens to your ownership rights after the tweet is retweeted. Does it now belong to the retweeter? Do you still have a protectable interest? Is it now public?
Well you now have an answer!
Daniel Morel, a Haitian-born photojournalist, was in Port-au-Prince when the big earthquake occurred in 2010. He was one of very few journalists on the ground and was able to take some really powerful pictures of the devastation. He uploaded and disseminated his photos using his Twitter account and a third-party app called Twitpic. The Twitpic terms of service provide that owners of images retain copyright in them. Twitter’s, like Twitpic’s, terms of service allow users to “retain your rights to any content you… post on or through the services.” Although there were no copyright notices on the images, Morel’s twitter page did include the attributions “Morel” and “by photo morel” next to the images, as well as the copyright notice (c)2010 Twitpic, Inc. All Rights Reserved.”
A Twitter user in neighboring Dominican Republic re-tweeted them and they spread over the internet, without any credit being given to Morel, though the Twitter trail could have been followed if anyone was really interested in seeing who originally posted the pictures. Getty then disseminated them to news outlets including the Washington Post without any accreditation or attempt to find the photographer responsible for the breathtaking images. Agence France-Presse also downloaded the images, but credited them to its own stringer and sold them to third parties (including Getty Images). AFP, with a certain amount of chutzpah, sought a declaration that it had not infringed Morel’s copyright; he counterclaimed: Agence France Presse v Morel, US Dist LEXIS 5636.
Morel later got credit for his work, winning two World Press Photo awards. The district court in Manhattan found for Morel with respect to his claims of direct infringement. AFP could not establish that it was a third-party beneficiary of Morel’s agreement with Twitpic or that a sub-licence was somehow granted through retweeting, given the clarity of the Twitpic terms of service, which stated that retransmission of images merely granted a licence to use someone else’s images on Twitpic.com or an affiliated site. The judge did think, however, that damages should be limited to a figure based on the number of works infringed, not the number of infringements (which would be much larger, given the number of retweets involved). Issues related to Getty’s knowledge and intent, wilful infringement by AFP and Getty, and contributory or vicarious liability were left for another day, as they turned on questions of fact which could not be decided summarily.
The copyright law governing this case is pretty clear. The person who takes the photo has the copyright and anyone making a commercial use, even a derivative use, of the image is liable for copyright infringement. Any other decision would have severely cripple copyrights and discouraged the use of social media to disseminate work. This curtailment would severely limit innovation because artists and innovators would not have this means of advertising and might slow innovation because of renewed barriers to entry and access. Merely Tweeting your picture does not allow others to use it for commercial gain. The terms of service on sites like Facebook and Twitter allow for their use, they do not provide an opportunity for third parties to capitalize on the works of users.