No, You Can’t Sell Those Pictures You Found on Twitter

No, you can’t sell those pictures you found on Twitter. But their owner also can’t enjoy an absurd windfall if you do.

Three years ago we saw heartbreaking images of a devastating earthquake in Haiti. Photographer Daniel Morel saw the devastation firsthand. As it is his work to do, he captured photos of what he saw. He also shared his images via Twitter. As it turned out, it seems much of what the world saw in the early aftermath were those pictures taken by Mr. Morel. We saw them not, however, through any arrangements made by Mr. Morel.

Agence France Presse, or AFP, came upon Mr. Morel’s images of the Haiti disaster and transmitted them to Getty Images via a license agreement, and Getty made them available for distribution to its customers, with some resulting publication. Thrown in are a few twists—an interceding retweeter purporting to sell, resulting improperly attributed bylines, involvement of TwitPic in the initial posts.

Many readers will have followed this case, as it engaged issues in U.S. law about the intellectual property rights in works shared via social media. The case seems reminiscent of years-old ruminations about who owns and who can use content posted on the Internet. The difference here is the angle of the social media vehicle: the impact of an intermediary, Twitter—plus the aforementioned twist of another intermediary, TwitPic—and its license and terms of use.

Though it seems odd, it was AFP that filed the Complaint in the matter. It sought a declaration of no copyright infringement by it. Mr. Morel filed a counterclaim against AFP, Getty Images, and a publisher of his images for, among other things, copyright infringement.

The U.S. District Court released its ruling on summary judgment cross-motions this week. To the surprise of likely very few, the court granted Mr. Morel’s summary judgment motion for copyright infringement. (The court dismissed both summary judgment motions in other respects.)

Reuters reported on the ruling, and an interesting writeup is at Ars Technica.

AFP’s key argument seems to have been that, when Mr. Morel posted his photos via Twitter, AFP, coming upon them, became a licensee under the governing California law. That is, AFP argued, it became a third party beneficiary to Twitter’s terms of service, thereby deriving a license to use the images for commercial purposes. This, of course would be a defense to copyright infringment.

Things other people post on Twitter can be yours to sell? Huh?

If you’ve read Twitter’s terms and this is your reaction to AFP’s argument, you’re in good company with the Court. The Court reviewed much California case law on the third party beneficiary/licenses concept. In the end, the Court could not see how the Twitter terms of service could be read to create that third-party beneficiary/licensee status. It pointedly referred to many parts of the terms of service assuring that the tweeter retains copyright (e.g. “what’s yours is yours – you own your content”).

If AFP’s Complaint seems odd, consider what it did get in the result. Assuming the matter proceeds, Mr. Morel seeks a broad view of his statutory damages. He was looking for a separate award of statutory damages for each infringement—then essentially multiplied by all of the joint infringers. This would have brought his award to potentially hundreds of millions of dollars.

The Court preferred AFP’s view: Each party would be liable for a single award of damages per infringement. Of note is the Court’s blunt statement that Mr. Morel’s view “would lead to absurd results” and to “awards of statutory damages that are massively disproportionate when compared to the actual harm caused by the infringing defendants.”

The utterly reasonable ruling is reassuring. And the expressed view of the absurdity of massively disproportionate damages awards is welcome.

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