Court To AFP: Pics Aren’t Free Just Because They’re On Twitter

Updated with comment from Agence France-Pressse attorney.

Agence France-Presse stunned the Twitter-sphere last month when the wire service defended itself against a copyright claim brought by Daniel Morel, a photographer who captured iconic images of the Haiti earthquake, by saying that the photos were essentially free for the taking because they’d been shared over Twitter and TwitPic. Tweeting photographers can rest easy, because now a court has ruled that AFP isn’t off the hook, and will have to answer for its unauthorized use of Morel’s images.

Update: Well, maybe rest a little easier. AFP’s attorney, Joshua Kaufman of Venable LLP, contacted me today and said his client will continue to litigate this case. AFP’s fundamental position-that uploading pictures to TwitPic makes them available for other parties to use-hasn’t changed. And it’s common practices for news services to use such images, added Kaufman, saying: “If you look in magazines, there are hundreds of pictures a week that are taken off of TwitPic.” That’s because when a user agrees to Twitter’s terms of service (which all TwitPic users must do), the user agrees that Twitter, its partners, “and others” have the right to re-broadcast content, according to Kaufman. (The Twitter terms of use appear to have changed since this all occurred in January 2010.) “AFP certainly believes they acted appropriately, within the terms of the license,” he said.

The case is being closely watched because it was one of the first legal tests of the rules around news agencies’ use of content from Twitter, which has become an increasingly important component of breaking-news coverage.

Morel took several iconic photos of the Haiti disaster, and uploaded them to TwitPic, a service that allows Twitter users to easily share photos. He also advertised, via Twitter, that his photos were available for purchase. However, according to Morel’s account in court documents, his photos were illegally copied by Lisandro Suero, a resident of the Dominican Republic. Several major news agencies, including the AFP and Newsweek, published Morel’s photos but improperly credited them to Suero, and never paid Morel.

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.

AFP had claimed that it had broad re-use rights because of Twitter’s terms of service. “This broad re-use is evidenced every day when Twitter/TwitPic posts are copied, reprinted, quoted, and republished by third parties,” wrote AFP’s lawyers.

But that argument was rejected by U.S. District Court Judge William Pauley, who wrote in his opinion [PDF] that Twitter’s terms of use “does not clearly confer a right on others to re-use copyrighted postings.”

Now that AFP has lost key arguments of its motion to dismiss, Morel can move ahead with his copyright claims against AFP and other news companies that used the photo. Santa Clara University law professor Eric Goldman, who has been observing the case, writes:

“AFP made numerous mistakes that resulted in infringing photos being injected into the news coverage of a major world crisis, which inadvertently tainted a variety of downstream media properties-all of whom, due to copyright’s strict liability standard, are likely to write checks to Morel. AFP and its unfortunate partners should end their likely-futile and sometimes-silly defense and settle up with Morel so that everyone can move on to more productive endeavors.”