A recent case involving the copying of photographs posted on Twitter illustrates a point we emphasize to clients over and over. Just because photos (or other content) are posted on the Internet, does not mean that you can copy and use the photos (or other content) for your own use.
Agence France-Presse v. Morel, No. 10-02730 (S.D.N.Y. Jan. 14, 2011).
Background
The facts in this decision form a case study in how news organizations should not behave while covering a major news event. We will simplify the facts here for purposes of this discussion. In the aftermath of the 2010 earthquake in Haiti, a photographer, Daniel Morel, took some photographs and posted them on his Twitter and Twitpic accounts. When he uploaded the photos, he included "by photomorel," "daniel morel" and "morel" next to the photos. A third party copied the photos to his website and claimed that he owned the copyright. The French news agency Agence France-Presse (AFP) and several other news organizations apparently knew Morel took the photographs but downloaded several pictures from the third party and incorporated the pictures in their news reports without the credits. AFP sought a declaration that its use of Morel's pictures was not infringing. Morel filed a counterclaim alleging infringement of his copyright in the pictures, and brought third party claims against the other news organizations who used the photographs. Morel also alleged the companies violated the Digital Millennium Copyright Act (DMCA) by reproducing the photographs without the photo credit accompanying the photos on Morel's Twitpic account.
Copyright Claim
AFP and the companies moved to dismiss the counterclaims, arguing that Twitter's terms of service granted them a license to use the photos. The terms provided:
By submitting, posting, or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adopt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods…[.]
Tip[:] This license is authorizing us to make your Tweets available to the rest of the world and to let others do the same. But what's yours is yours-you own your content.
Based on this language, the court found that Twitter's terms grant a license to use content only to Twitter and its partners. Because AFP and the other news organizations were not Twitter partners, the Court decided they did not have a license to reproduce the pictures, and denied their motion to dismiss. The court added that courts may find a license on a motion to dismiss where the terms of the contracts are clear. Here, however, Twitter's terms of service did not meet that standard. The terms did not clearly grant a license to AFP and the other news organizations, so the motion to dismiss was denied.
DMCA Claim
The court also refused to dismiss Morel's DMCA claim, based on AFP's removal of "copyright management information" ("CMI") (as defined in Section 1202 of the DMCA) from the photographs. The DMCA prohibits intentionally removing or altering CMI (which can include a work's title and identifying information, the author's name, and other information about the copyright owner). AFP argued that the CMI must be removed from the photo itself to state a claim, and that Morel had not put the copyright information on the visible photo or in the same digital file. The court rejected this argument. In the court's view, the information next to the pictures in Morel's Twitpic account constitutes CMI, and Morel's allegations that AFP distributed the photos without the CMI was sufficient to state a claim. In doing so, the court rejected a line of cases from other courts that have limited CMI to "a component of an automated copyright protection or management system."
Comments
Businesses and individuals must be careful when using photos and other content found on the Internet. Contrary to popular belief, content is not freely available just because it is posted on the Internet, even if no copyright notice is visible. The same intellectual property rules that apply in the physical world also apply on the Internet. If you cannot point to a clear license granting you permission to use or copy the content, then you generally cannot do so without obtaining such a license.
In addition, people who post content and pictures to the Internet should consider adding identifying information to the content to qualify as "content management information" under the DMCA. Under this court's reasoning, such information provides the creator with a separate claim against those who copy and distribute the content without the content management information.