Photographers’ rights to their photos posted on Twitter and twitpics

This article was first published in Vol 17 No 3 of the Internet Law Bulletin 

• You and your clients should be very careful before using photographs or other works found on social networking sites such as Twitter.
• Under both Australian and US law it is important to not remove or change content management information, including attribution information.
• Users of social networking sites need to understand that there are terms and conditions of use which will be applied by the courts in a dispute.
• Media outlets, at least in the US, need to apply due diligence about the origin of images they source on the internet.

Artists across all art forms can have a love hate relationship with social media as it can be a wonderful platform for global distribution of their work and can result in significant international recognition. The downside is the potential for the work to be copied, changed and circulated broadly with no attribution leading to nothing but lost remuneration and anonymity for the artist.

On 23 November 2013 social media erupted with the news that copyright infringement of photographer Daniel Morel’s images which he had posted on Twitter following the Haitian earthquake in 2010 had resulted in a court awarding him US$1.2 million in damages against the guilty media outlets. Some commentators said it rewrote the rules of social media engagement but for others it was the court clearly upholding the photographer’s copyright in his images.

The following article looks at a landmark case involving Haitian photographer Daniel Morel and image licensing companies, Agence France Presse (AFP) and Getty Images. The saga began when Haitian photographer Daniel Morel who captured iconic images of the Haitian earthquake discovered his images were being sold to numerous media outlets by AFP and Getty without his permission or any payment. He initially sent them a letter to cease and desist and in return they sued him for defamation and accused Morel of engaging in ‘an antagonistic assertion of rights’ seeking a declaratory judgment that they had not violated Morel’s copyright. Morel counterclaimed copyright infringement and as well as several other claims. Subsequent to a preliminary judgement in 2011, Morel was able to pursue his case in the New York District Court[1]. A summary judgement was issued by Judge Alison J Nathan in January 2013[2] against AFP and Washington Post, leaving  further matters as to whether Getty infringed Morel’s copyright, whether the infringement by AFP was wilful, and how much Morel should get in statutory damages to be determined at trial. The jury verdict on 23 November 2013 was as favourable as it could be to Morel finding wilful infringement and awarding him the maximum amount of damages available.

Background

On 12 January 2010, photojournalist Daniel Morel who had been working in Haiti for over 25 years caught his big break when he was able to snap some of the first photos of the suffering endured in the aftermath of the Haitian earthquake. In an attempt to publicise what was happening in Haiti, and potentially receive both payment and recognition for his photographs, Morel swiftly shared a selection of his photos via Twitter’s photo sharing application, Twitpic, with a link to his photos from his Twitter account. There was no copyright notice on the images themselves but his Twitpic page included attribution “Morel” and “by photomorel”, his Twitpic user name. The Twitpic page also included the copyright notice “© 2010 Twitpic Inc All Rights Reserved”. However within minutes of Morel sharing his photos, Lisandro Suero, from  the Dominican Republic who was not a photographer and did not witness the earthquake, copied the photographs and posted the pictures on his own Twitpic page tweeting he had “exclusive photographs of the catastrophe for credit and copyright”.

The international media took notice of Morel’s photographs immediately and he was contacted by numerous media outlets to purchase his photos for publication, including Amalvy, a photo editor from  AFP. Despite having made this initial contact, Amalvy subsequently downloaded 8 of Morel’s photographs from Suero’s Twitpic page.

AFP, the global media agency operates an extensive image library through its Image Forum online platform, which it uses to market and distribute photographs to news agencies worldwide. AFP placed Morel’s photographs on Image Forum and transmitted them to Getty, an image licensing company which has exclusive rights to AFP images in North America and the UK. The images were all credited to AFP/Getty/Lisandro Suero. The images were on-licensed to numerous 3^rd parties including Washington Post and CNN.

Communications from AFP employees to Morel the day after the earthquake made it clear that AFP staff realised who the correct photographer was and AFP issued a credit correction on 13 January. However, they did not remove the images credited to Suero and continued to license these to hundreds of media agencies. Morel was only able to license one image himself for profit. Every other media outlet that wanted to use the news breaking photographs accessed them via AFP/Getty Images instead.

Morel was represented by Corbis Inc another photography agency. Corbis contacted AFP and other agencies that used the images without permission. They issued cease and desist letters insisting that there had been a violation of Morel’s copyright. AFP responded by initiating legal action against Morel for defamation, claiming thathe was engaging in an ‘antagonistic assertion of  rights’and sought an injunction that they were not violating his copyright. They argued that twitter’s Terms and Conditions allowed them to freely distribute images that were made publicly available on the social media website. Morel disputed the claim and counter-sued for copyright infringement.

The Courts’ Findings

The initial finding in the US District Court in January 2011 found that AFP and Getty Images had infringed Morel’s copyright. AFP asserted they had a licence to use Morel’s images or that they were 3^rd party beneficiaries of the licence between Morel and Twitter. The Court didn’t agree. Twitpic and Twitter’s Terms of Service provided:

By submitting, posting, or displaying Content on or through the Services, you grant us a worldwide, non-exclusive , royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such content in any and all media or distribution methods….

Tip[:] This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same. But what’s yours is yours – you own your content.

The Terms of Service go on to state that Twitter has the right to sublicense to other companies and individuals who partner with Twitter.

Both Judge Pauley in the first judgement (Jan 2011) and Judge Nathan in her summary judgement (Jan 2013) found that the commercial distribution and licensing of shared content without permission from the copyright owner was not permissible and contrary to AFP’s assertion, the court found that Twitter’s Terms and Conditions uphold the individual’s copyright ownership over their images. Limited re-publishing actions are permissible if they are within the social media context (for example re-tweeting someone else’s pic). However, when it comes to commercial use of online images, Twitter can sublicence to its partners but this does not extend to 3^rd party users. A business entity is bound to seek permission and to adequately credit the copyright owner, just as they would if the images were sought from other established media websites.

Wilful copyright infringement and the importance of due diligence

Unlike the Australian copyright system, in the US, whilst the judge determined certain matters in her summary judgement, she referred to a jury the questions as to whether there was wilful violation of Morel’s copyright and whether Morel should be awarded the maximum statutory penalty. On 22 November 2013, a US jury affirmed just how wilful they believed it to be by awarding Morel the maximum statutory penalty allowed under copyright law- 1.2 million dollars. In addition to this, the jury also found that AFP and Getty had violated 16 provisions of the Digital Millennium Copyright Act (DCMA) awarding the maximum amount of $400,000. 

In coming to this decision, the court heard evidence relating to AFP and Getty employees, their awareness of the origin of the photographs and their adherence to policy guidelines for sourcing images. AFP argued that the employee who originally sourced the images was not aware at the time that they were actually Morel’s. AFP and Getty insisted that the problem was caused by Suero’s deception and that they had made attempts to rectify an innocent mistake once they became aware of the true source of the photographs. However, Morel’s attorneys persuaded the jury that inadequate due diligence was undertaken to determine the true origin of the images, per AFP’s policy guidelines. The jury also considered that Getty employees were aware that Morel was the true owner of the images all along and that they failed to remove the images for licensing after AFP’s credit correction was issued. This was enough to convince the jury that AFP and Getty knew what they were doing and assumed that as media heavyweights they could get away with it, making them the first major digital distributors to be liable for wilful violation to the tune of 1.2 million dollars.

False Attribution under American Digital Millennium Copyright Act (DMCA)   

The court examined Morel’s claim that his name was removed from his Haiti earthquake images and that the images were falsely attributed to Lisandro Suero (in addition to improper credit to AFP and Getty) contrary to provisions in the DMCA.  Distinct from Australian law, American copyright law does not expressly encompass moral rights.  In the US, moral rights are protected under the Visual Artists’ Rights Act of 1990 (VARA), which solely protects the moral rights of visual artists[3].  However, the works of visual art which are protected under VARA are very narrowly defined (for example a photograph must have been taken for exhibition purposes only[4] and VARA only protects works of "recognized stature” from destruction[5]) so it is unlikely that the photographs at issue here would fall within the VARA definition. 

However the DMCA prohibits intentionally removing or altering copyright management information (CMI), or distributing CMI knowing it has been removed or altered, ‘knowing, or … having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title’[6].  The statute defines copyright management information as including the title of the work, the author of the work, the name of the copyright owner, and other identifying information.  The court in Agence France Presse v. Morel stated that the CMI does not have to be removed from the photograph itself for a claim to be made; it merely must have been removed in connection with the work so Morel was successfully able to claim damages for this.

Under the Australian Copyright Act 1968 s132AS prohibits the distribution or importing of electronic rights management information, where the information has been removed from a copy of the work, without the permission of the owner or exclusive licensee of the copyright.  The definition of “electronic rights management information” under the Act is comparable to that of CMI: it includes information that “identifies the work or subject-matter, and its author or copyright owner.” In addition, the definition expressly indicates that such information can be in connection with work, as opposed to a part of the work itself.

Given the strong similarities between the two statutes, the issue of removal of identifying information in the Morel case would likely have come out the same way under Australian law.  AFP’s use of Morel’s photograph would satisfy the requirements of s132AS as an unlawful removal of electronic rights management information.

Possible Alternative Treatment of the Case under Australian Law

Unlike the limited moral rights law applicable to visual arts in the US, Australian moral rights apply to a much broader range of creative work such as music and literature and these rights are explicitly protected under copyright law[7].  Therefore, it is likely that in an Australian case similar to Morel, the artist would bring a claim for infringement of moral rights.  The incorrect labels attached to Morel’s images would create a strong argument for false attribution[8]. However to date the amount of damages awarded for false attribution have not been substantial[9].

The Australian courts have not dealt with a case concerning the commercial distribution or licensing of social media content. If the Morel case was imitated in Australia, it is likely that the fair dealing provisions in s 42 Copyright Act 1968 would be considered. The fair dealing provisions establish that the use of a literary, dramatic, musical or artistic work for the purpose of news reporting is not copyright infringement if the owner is sufficiently acknowledged. In an Australian version of Morel’s case, Suero’s deception and the resulting lack of sufficient acknowledgement would weaken a fair dealing defence.

While a finding that AFP and Getty had infringed Morel’s copyright would be reasonable in an Australian version of this case, Australian copyright law does not consider statutory damages for wilful infringement of copyright. The focus of Australian remedies is compensation for actual damages – for example, by calculating Morel’s loss of profits or accounting for AFP and Getty’s gain. Therefore the existence of wilful violation would not be considered in Australia, making an Australian imitation of this case far less controversial than our entertaining friends in the US.

What now?

In January 2014 AFP and Getty are seeking an appeal of the jury verdict. They have attested that the damages are ‘intrinsically excessive’ and amount to a ‘miscarriage of justice’. They have requested one of three outcomes to amend the jury finding of November 2013 – either make a finding that AFP and Getty are liable for violation but not wilful violation of Morel’s copyright, allow for a re-hearing before a different jury or reduce the damages award to $200,000[10].

It remains unclear what will transpire, but that this case at least serves as a reminder to media corporations, social networkers and photographers that adequate procedures need to be implemented to ensure that while content can is broadly circulated, publicised and accessed, copyright ownership and acknowledgement is effectively protected in the digital domain. 

Footnote – another million dollar verdict for US photographer

In another case in the US involving the internet and a photographer’s copyright was Leonard v Stemtech Health Sciences[11] commenced in the Delaware District Court back in 2008. Leonard[12] was a photographer specialising in microscopic photography. He had a flourishing market for his images in the medical, pharmaceutical and research industries. Stemtech was a marketing organisation. In 2006 Leonard was contacted by Stemtech about using one image in the HealthSpan publication and on Stemtech’s website for one year. Leonard only received part payment for the use of the image in the publication and nothing for uses Stemtech made without authorisation on its websites, publications and video presentations. Because Leonard did not register his copyright until after the infringements, he wasn’t eligible for statutory damages nevertheless, the jury awarded Leonard US$1.6 million in actual damages for intentional infringement of his copyright.

Ruthanna Klawansky is the membership Officer at the Copyright Agency and a volunteer at the Arts Law Centre of Australia.