Not so fast. In a landmark copyright judgment on Monday, a Manhattan district judge ruled that two major news outlets infringed on the copyrights of Daniel Morel, the photographer whose horrific images of the 2010 Haiti earthquake were disseminated to various news organizations, without his permission, after he posted them on Twitter. The French newswire Agence France-Presse (AFP), which first obtained the photos from Twitter and shared them with the stock-photo service Getty Images, was cited in the judgment, along with the Washington Post.
The ruling brings a bit of closure to a highly watched three-year legal battle, one of the first to address issues of ownership surrounding photos uploaded to social media. Throughout the case, the AFP steadfastly contended that by uploading the photos to Twitter, Morel was making them publicly available and therefore fair game. For many photojournalists who have been following the case, that contention was seen as not only unfounded but downright bizarre, especially as it was coming from one of the world’s oldest and most respected news agencies.
“They should know better,” said Mickey Osterreicher, general counsel for the National Press Photographers Association, an advocacy group for photojournalists. “AFP trades in pictures. They understand that a photograph is a valuable commodity.”
AFP’s defense hinged upon what Osterreicher considers a boldly liberal interpretation of Twitter’s terms of service. The agency maintained that those terms granted it a license to redistribute Morel’s photographs as it saw fit. In fact, it contended that it was doing Morel a favor. “Users of Twitter intend for their postings (‘Tweets’) to be publicly available and to be broadly distributed through the internet and other media,” lawyers for the AFP wrote in court papers. “Indeed, upon information and belief, most users of Twitter use its services in order to broadly disseminate the material that they post.”
Twitter’s terms of service do say that users who post to the site are “authorizing us to make your Tweets available to the rest of the world and to let others do the same,” but the agreement says nothing about third parties redistributing content for commercial use, which was the case with Morel’s photos. Moreover, the terms affirm what Twitter has been saying all along: Twitter users own their own content, plain and simple.
It’s that hands-off ethos that has allowed Twitter, which was not a party in Morel’s lawsuit against AFP, to hold its position as a neutral observer of the often-chaotic informational environment its ubiquity fosters.
“Think of Twitter like Grand Central Station,” said Andrew Berger, counsel with the Manhattan law firm Tannenbaum Helpern Syracuse & Hirschtritt, who has been following the case. “They just want to keep the station clean and make sure everything can pass through it. This is not really their fight.”
Osterreicher, meanwhile, said he agrees with Monday’s ruling, which paves the way for Morel -- a professional photographer -- to be awarded statutory damages for each of the eight photos that the AFP distributed. “As a visual journalist, I’m gratified,” he said. “The judge in this case clearly understood what was at stake for people who make their living taking pictures.”
News For The Taking
Wedged at the intersection between citizen journalism, boots-on-the-ground reporting and 21st-century copyright law, the case of AFP v. Morel has been under close scrutiny by a media industry struggling to codify fast-but-fair newsgathering methods in the age of social media. At some point in the last six years, traditional media outlets found their position as “you-heard-it-here-first” news breakers usurped by legions of everyday Twitter users who tweet photos of breaking news events the instant they happen.
For eager journalists, Twitter has emerged as a veritable treasure trove of temptation, a vast repository of easily copied digital photos depicting the news events that journalists are desperate to cover.
It’s an issue confronting journalists around the world, and it isn’t likely to end with the Morel case. Just this week, following a fatal helicopter crash in London, major U.K. media outlets were criticized after they posted photos of the accident taken by Twitter users. One Twitter user posted a photo taken from his apartment, which was struck by the helicopter. The photo ended up on the website of the London Evening Standard. The next day, a representative for the Evening Standard told the Guardian that the paper was unable to contact the Twitter user at the time, but had offered to compensate him after the fact.
Osterreicher acknowledges the challenges journalists face in a light-speed news climate, but he said the cutthroat atmosphere shouldn’t excuse lax efforts to obtain permission before a photo is used. “News organizations need to do their due diligence,” he said. “You have a situation now where everybody’s rushing to be first. Everybody’s like, ‘Forget accuracy. Let’s get it out there. We’ll sort it out later.'"
Wrong Place, Right Time
In Morel’s case, the news event that would change his life was a major earthquake near Port-au-Prince in his native Haiti in January 2010. In an instant, proximity became his greatest asset, and the heartbreaking images he captured in the heat of the devastation -- children covered in rubble, local businesses collapsed in on themselves -- became a valuable news commodity the moment they appeared on Twitter. The problem? Morel was smack in the middle of a disaster zone. While he managed to find a secure Internet connection long enough to upload to his TwitPic account, he was not readily available to grant his consent for the photos’ commercial use.
The details of what happened next are disputed, but according to court documents, AFP obtained Morel’s photos on Twitter after they were reposted by another user, Lisandro Suero, who claimed them for his own. Unable to verify the photos’ origin and under pressure to offer visual coverage of the devastation in Haiti, the agency forwarded the photos to Getty Images, with which it has a licensing agreement.
Once on Getty’s system, the photos were picked up and published by several major news outlets, including ABC, CBS, CNN and the Washington Post. Most of the outlets incorrectly attributed the photos to Lisandro Suero. It was only later that Morel found out his work was being reproduced around the world under someone else’s name.
The Post was the only other news outlet to be named in the lawsuit. According to court documents, Morel’s photos remained on the Post’s website even after lawyers for Morel made several email requests to have them removed. The Post contends that it never received the requests.
As for Getty Images’ role in the copyright infringement, it too was named in the lawsuit, but District Judge Alison Nathan, who heard the case, has not yet ruled on Getty’s liability. The Seattle-based stock-photo service has maintained that it could not have known that the images in question were not cleared for use. Many critics of Getty see this stance as blatantly hypocritical, given its reputation for aggressively pursuing infringement against its own photos.
“They should be ashamed of themselves,” said Oscar Michelen, a litigation lawyer who specializes in stock-photo cases. “Getty’s method for dealing with copyright infringement is universally to go after website owners. Their response is always the same: Ignorance of infringement doesn’t absolve you from responsibility. So for them to take that position when they spend all this energy holding people to the fire is ridiculous.”
Getty has long been known to police the Internet for unlicensed use of its photos. It frequently sends hostile letters (known as extortion letters to its critics) to perceived offenders, threatening litigation if they don’t pay a licensing fee. Getty’s tactics are so pervasive, in fact, that editor Matthew Chan launched a website -- Extortion Letter Info -- specifically set up to advise victims of Getty’s aggressive saber-rattling.
Michelen has been working with Extortion Letter Info for five years, and in that time, he said, as the Internet has grown, the number of people on the receiving end of Getty’s “letter scheme” has grown with it. For Getty, it’s a numbers game, he said. He estimates that the company asks for an average claim of $1,000 per image, and many people are intimidated enough by the ominous letters that they simply pay up. “It does make a lot of people nervous, because they think it’s going to ruin their credit,” he said. “But you have to realize, a legal claim is not a debt. It can’t hurt your credit rating.”
That Getty is now on the opposite side of a copyright battle has been seen as no small irony to anyone who follows issues of fair use, but most legal analysts see Monday’s ruling in the AFP v. Morel case as a positive step toward establishing a protocol for photojournalists and social media. For Morel, it was a mixed victory. According to the ruling, the photographer will only be able to collect damages based on each photo that was used -- not based on each time the photos were copied, as his lawyers had hoped. Berger said that, as the first high-profile case to tackle this issue head on, the ruling is a “fair interpretation of Twitter’s terms of service,” and of the 1998 Digital Millennium Copyright Act.
For news outlets, the broader implications of the ruling are clear. The free ride of swiping photos from Twitter may be coming to an end. For photographers, Osterreicher said, the implications are multi-faceted, but the main lessons are threefold: Pay attention to terms of service, register your work with the copyright office and always be prepared to live with the consequences of what you post on Twitter -- forever. “Once something goes on the Internet, it has the same half-life of uranium 235,” he said. “It never goes away.”