As lawyers know all too well, it pays to read the really fine print: The terms of service for Twitter, it turns out, have played a central role in a notable decision by a U.S. District Court in New York involving the wire service Agence France Presse and the Washington Post. They were found to have infringed the copyright of photojournalist Daniel Morel. Partial summary judgment was granted in favor of Morel after the court found that Twitter’s terms do not grant a third-party license for commercial use of images posted on the service, thereby making AFP and the Post liable for distributing and publishing Morel’s photographs.
While in Haiti during the 2010 earthquake, Morel uploaded 13 pictures he took of the devastating aftermath to a Twitter account. AFP obtained the photos, re-posted by another user and the news service transmitted them on its wire and with partner Getty Images. The Post published four photos on its website, obtained from Getty.
After AFP filed a complaint against Morel for commercial defamation, seeking a declaration that the news service had not infringed his copyright. the photographer filed a counterclaim against AFP, Getty and the Post. He accused them of willful infringement of his copyright and violating the Digital Millennium Copyright Act, making AFP and Getty secondarily liable for the infringement of others who had posted the photos.
U.S. District Judge Alison J. Nathan rejected defendants argument that Twitter’s terms protected them against Morel’s infringement claims. She applied California law, which governs Twitter’s terms, which state that “third-party beneficiaries are permitted to enforce the terms of a contract made for their benefit.” To qualify as a contract beneficiary, “the contracting parties must have intended to benefit that individual, an intent which must appear in the terms of the agreement.”
Twitter confers certain rights to its partners and sub-licensees; neither AFP nor the Post, however, provided proof they are its third-party beneficiaries. They characterize themselves as “users.”
That Twitter encourages and permits broad re-use of content does not confer a clear right on others to re-use copyrighted postings, the judge made clear — meaning that, while users agree to Twitter’s terms, which encourage re-posting of content shared on its service, it does not retain the right to license images for commercial use without copyright holders consent. The failure by AFP and the Post to prove they were third-party beneficiaries left them liable for infringement.
The court held in favor of AFP and the Post, limiting Morel to a single statutory damage award per image infringed. Morel sought to claim damages for each use of the images and to hold AFP, Getty and the Post jointly liable. Nathan declined summary judgement on other claims, including Getty’s role and Morel’s assertion that the infringement was willful.