Tuesday, February 11, 2014

Promotional Benefit Or Rights Grab?

By Samuel Lewis Published in The Business of Photography
Promotional Benefit Or Rights Grab?
Meanwhile, the Post published four of Morel's images. In a turn of events more befitting a comedy of errors, nearly two months after the earthquake, Morel's attorney sent a letter to the Post advising that Morel would allow the Post to display his photos provided the captions were corrected to credit Morel. The Post never received the letter. It did, however, receive a notice from Getty several months later advising that the images should be taken down, and the Post ultimately removed the images from its website.

In March 2010, roughly two and a half months after the earthquake, AFP filed suit against Morel in the U.S. District Court in New York. In this preemptive strike, AFP sought a declaration that AFP's use of Morel's images was authorized under Twitter's terms, and therefore, AFP couldn't be liable to Morel for copyright infringement. Morel countersued, accusing AFP, Getty and the Post of copyright infringement.

On January 14, 2013, U.S. District Judge Alison J. Nathan released a 58-page summary judgment opinion. A court grants summary judgment when it's able to resolve aspects of the case, and sometimes the entire case, by making legal rulings based upon undisputed facts. Summary judgment prevents the court and the parties from wasting the time and expense associated with a trial when there's no dispute over the facts.

In her opinion, Judge Nathan analyzed Twitter's terms to assess whether AFP had the right to republish Morel's images without his consent. Under Twitter's terms, users like Morel grant Twitter the right to make content "available to other companies, organizations or individuals who partner with Twitter for syndication, broadcast, distribution or publication of such" content. Similar to Instagram's terms, Twitter's terms provide that any such use of content may be made without compensation to the user who posted the content to Twitter. AFP contended that this language was broad enough to give it the right to use Morel's images once he posted them to Twitter.

When interpreting Twitter's terms, the Court ruled squarely in Morel's favor. As the Court explained, "It suffices to say that based on the evidence presented to the Court the Twitter [terms] do not provide AFP with an excuse for its conduct in this case.... Put differently, the evidence does not reflect a clear intent to grant AFP a license to remove [Morel's images] from Twitter and license them to third parties...." The Court went further when addressing both AFP and the Post: "AFP and the Post raise no other defenses to liability for direct copyright infringement, and, in fact, concede that if their license defense fails—as the Court has determined that it does—they are liable for direct copyright infringement."

The Court noted that Twitter's terms "'necessarily required' Morel as promisor to confer certain rights of use on two classes—Twitter's partners and sublicensees...." However, even with Twitter encouraging and permitting broad reuse, the terms still didn't establish "Twitter's intent to confer a license on 'other users'" like AFP. The Court also noted that Twitter's terms suggest "that content should not be disassociated from the Tweets in which they occur," and that "AFP's removal from Twitter and commercial licensing of the Photos-at-Issue is not akin to the rebroadcast of a Tweet."
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