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Lawsuit Tests Whether Twitter Pictures Are Free For The Taking

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In the past year, news agencies have grown accustomed to re-broadcasting content posted on Twitter to help cover breaking news. But a lawsuit over photos of the Haiti earthquake may prove to be an early test of what kind of rights users of Twitter and related services retain to their content. The Agence France-Presse wire service has insisted that it has the rights to use Daniel Morel’s photos of the Haiti earthquake without Morel’s approval-all because the photographer used the TwitPic and Twitter services to try and sell his work.

AFP’s argument is laid out in court documents from a lawsuit it filed against Morel, responding to allegations from Morel’s lawyer that the AFP had illegally used photographs that he took in the aftermath of the earthquake that struck Haiti in January 2010. The litigation is one of the first disputes over who owns content posted to Twitter and related services.

As television stations increasingly integrate Twitter content into their coverage of breaking news, the AFP v. Morel lawsuit is attracting notice in legal circles because of AFP’s assertion that Morel “provided a nonexclusive license to use his photographs when he posted them on a social networking and blogging website known as Twitter without any limitation on the use, copying or distribution of the photographs.”

If the AFP’s argument is successful, it could mean that content creators who use Twitter to disseminate images could be putting their copyright at risk. But observers are skeptical that AFP will succeed in its argument that Morel’s photos are now available to all without charge.

Morel has filed additional claims demanding compensation from Getty Images-which acquired Morel’s photos from AFP and further distributed them-as well as ABC (NYSE: DIS), CBS (NYSE: CBS), and CNN, all of which used Morel’s photos in news coverage of the Haiti disaster.

Twitter and TwitPic are separate companies, but AFP’s most recent court filings refer to Morel posting his photos to “Twitter/TwitPic.” AFP maintains that because the TwitPic login page makes users agree to “continue to operate under Twitter’s Terms of Service,” that a TwitPic user is bound by both the Twitter and TwitPic terms of service, and that those documents provide it a license to Morel’s photos.

AFP’s claims that third parties have a license to material posted on Twitter seem especially jarring in light of Twitter’s recent clarifications of some of its terms of use. Twitter’s terms of service clearly state that “you own your content.”

But AFP argues that because Twitter’s terms of service allow third parties broad re-use rights to content-and “this broad re-use is evidenced every day when Twitter/TwitPic posts are copied, reprinted, quoted, and republished by third parties. Morel’s goal was to “inform the world of the disaster,” and he achieved it using Twitter, argues AFP.

Morel, who was born in Haiti in 1951 and lived there until he moved to the U.S. at the age of 18, was one of a few professional photojournalists in Port-au-Prince when the city was hit by an earthquake on Jan. 12.

Morel immediately advertised the availability of the photos on his Twitter account, and uploaded the pictures to TwitPic, a third-party service that links up photos with Twitter accounts. According to court documents, Morel’s photos were illegally copied by Lisandro Suero, a resident of the Dominican Republic, who sold the photos as his own to AFP and other parties.

AFP later sent out a “kill letter” correcting the credit for the photos, but not all news agencies have changed captions on the photos, many of which still credit Lisandro Suero.

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