By Monica Goyal and Jon Mackenzie

The debate around ownership of content posted by users of online social media services continues. In the wake of the recent uproar surrounding Instagram’s proposed Terms of Service changes designed to allow them to claim ownership over their users’ posted photographs, the New York District Court has clarified the issues surrounding ownership of photos posted on Twitter in a recent decision – AFP v Morel. While the ownership and usage rights of content posted by users on their social media accounts will no doubt continue to be debated by social media companies, users, and the courts, this case does clarify some important points.

The facts of the case are fairly straightforward, though the Plaintiff’s legal arguments were unusual and tenuous at best. Daniel Morel, the defendant in this case, took several photos on the day Haiti was rocked by an earthquake in early 2010 and posted them to Twitter using TwitPic, explaining that they were available for purchase. Unfortunately for Daniel, another user, Lisandro Suero, claimed the photos as his own and sold them to Agence French-Presse (AFP). The French newswire then shared the photos with the Getty photo service, as was common practice for the company. According to court documents, the AFP gives Getty about 1,500 to 2,000 photos each day under a licensing deal the two companies have. Daniel’s photos were then distributed worldwide and became “iconic,” according to Morel’s lawyer.

A lawyer at Corbis, one of Getty’s competitors, with whom Daniel Morel had signed on with as his exclusive licensing agent, noticed that a number of newspapers around the world were printing photos with bylines reading “Daniel Morel/AFP/Getty Images.” AFP promptly deleted all of Morel’s photos off its servers and sent out a “kill notice” about the photos to its customers. Some customers complied but a number of Morel’s photos remained in print, often because they were running under the erroneous byline of Lisandro Suero. In response, Morel and his lawyer began sending out notices that his copyright had been violated.

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AFP responded to Morel’s actions with a preemptive lawsuit that some commentators have described as “bizarre.” One of AFP’s arguments was that both Twitter and TwitPic’s terms of service allowed it to freely use content posted on both services. Both sites have standard boilerplate licenses that allow just those services to display users’ content. Those terms only apply between the user and the service. AFP insisted that because the user granted a license to Twitter and TwitPic, that automatically meant that such a license was granted to third parties like the AFP as well.

The court handily rejected this argument, pointing to the fact that Twitter and TwitPic’s terms of service both clearly state that the users retain ownership of their photos and writing that “these statements would have no meaning if the Twitter TOS allowed third parties to remove content from Twitter and license it to others without the consent of the copyright holder.”  Likely because of recent fears surrounding ownership of online content, Twitter felt it necessary to comment on this case, and affirmed the judge’s ruling, telling Reuters that “as has always been our policy, Twitter users own their photos.”

This case has implications for damages in these types of actions as well. Morel’s lawyer in this case urged the court to find that every illegal reproduction of Morel’s photograph by Getty and AFP’s members constitutes an individual infringement. If the Judge were to accept this argument, the damages Morel would have been entitled to would have ranged between approximately $4 million and $44 million. Instead, Judge Nathan found that AFP could only be liable once for each alleged “violative act,” putting damages in a more limited scope of between $20,000 and $200,000.

While this case seems fairly straightforward, it should give us pause when thinking about our interaction with social media. When we repost other people’s content, we rarely think about the potential copyright issues that may arise as a consequence. This case seems to affirm the principle that if you want to retweet or republish content only on Twitter, you are within your right to do so. However, if you want to publish someone else’s photographs, it is important that you get their permission as Twitter and TwitPic’s terms of service do not grant any type of license for republishing this material outside of Twitter.

Author Jonathan MacKenzie is a licensing candidate with the LSUC currently articling with Monica Goyal LLP. Prior to pursuing his interests in law, Jonathan obtained an undergraduate degree from McGill University majoring in History and minoring in International Relations. Jonathan went to law school in the United Kingdom at the University of Leicester and was an active member of the faculty, having success in the debating, mooting, and client interviewing competitions. Prior to beginning his articling term with Monica Goyal LLP, Jonathan spent six months volunteering with Pro Bono Law Ontario, a division of Law Help Ontario, helping to provide pro-bono advice to low income individuals. 

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