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Tuesday, February 11, 2014

Promotional Benefit Or Rights Grab?

Is social media synonymous with a loss of rights over your images?


Although the Court ruled that AFP and the Post are liable for copyright infringement, the decision doesn't necessarily obviate a trial. There are still factual issues, such as whether AFP and the Post willfully infringed Morel's copyrights, and how much Morel should recover from AFP and the Post as damages for their infringement.

Unlike AFP and the Post, Getty also argued that it can't be liable for copyright infringement because it's entitled to the benefit of the safe harbor (limited immunity) applicable to online providers under the Digital Millennium Copyright Act (DMCA). The Court found that there's a factual dispute as to whether Getty qualifies, and thus, Morel will have to proceed to trial and let a jury decide if Getty enjoys the limited immunity under the DMCA. As with AFP and the Post, the question of whether Getty is a willful infringer is an issue that will have to be resolved at trial.

While the Court's opinion regarding the Twitter terms and their limitations was generally positive for photographers, the Court's analysis regarding damages wasn't favorable. The Court squarely rejected Morel's theory of damages, which would have resulted in an award of statutory damages against AFP and Getty "in the tens or hundreds of millions of dollars." AFP and Getty argued that they're only liable for one award of statutory damages each—a maximum of $30,000 per image for infringement, and up to $150,000 per image for willful infringement—and not responsible, as Morel contended, for an award of statutory damages for every subscriber who used the images. The Court ultimately ruled that "AFP and Getty are, at most, each liable for a single statutory damages award per work infringed."

"There is nothing as mysterious as a fact clearly described"
Garry Winogrand's quotation about things clearly seen applies with equal force to social-media terms as to photography. Since contract terms vary from one social-media service to another, there's no way to summarily conclude that posting images to social media will or will not result in a loss of rights. However, at the risk of oversimplifying the issue, additional scrutiny is justified anytime the terms include the right to "sublicense" the content that may be posted. Indeed, had Twitter exercised its right to sublicense Morel's images to AFP, the Court's decision would have been dramatically different (and considerably less favorable for Morel).

If the issues with Instagram and Twitter bring one concept into sharp relief, it's the importance of reading and understanding the terms of a social-media service or website before deciding to upload images. Moreover, since the rights to any images uploaded will be governed first and foremost by the terms, the decision to accept the terms should be informed by the terms alone, and without relying upon any public statements or other representations appearing on the service's website that may run contrary to the terms.

Samuel Lewis is a Board Certified Intellectual Property law specialist and partner at Feldman Gale, P.A., in Miami, Florida, and a professional photographer who has covered sporting events for more than 25 years. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

 

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