Lawsuit Over Hatian Earthquake Photo Is a Disaster
|This is Twitter||This is TwitPic|
Daniel Morel, a photojournalist, was in the city of Port au Prince, Haiti when the earthquake struck. Mr. Morel photographed some of the most powerful and moving images documenting the quake’s aftermath.
But because of the devastation, Mr. Morel was limited as to how he could send his photographs to the outside world. So, Mr. Morel ended up uploading his photographs to TwitPic, and then tweeting about the photographs on Twitter.
Shortly thereafter, Lisandro Suero, copied the images and uploaded them to his own TwitPic. He tweeted that they were his photographs and available for distribution. Agence France Pressen(“AFP”), a French photo company found the pics on Suero’s TwitPic and then sold them to a number of their mainstream media clients, including Getty Images, Inc., the Boston Globe, the Denver Post, Time, Inc., Vanity Fair, USA Today, and the Age, Australia.
Mr. Morel never gave permission or received compensation for AFP’s use.
After Mr. Morel returned, he sent cease and desist letters to AFP and its clients. This made AFP mad and so AFP sued Mr. Morel for threatening them. AFP based its entire lawsuit on Twitter’s Terms of Service because it mistakenly assumed that Mr. Morel had posted his photographs on Twitter.
Over and over again AFP alleges that Mr. Morel posted his photographs on Twitter and cites Twitter’s Terms of Service.
AFP states —
Mr. 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.
AFP and its customers or affiliates, relied on this license and their respective uses did not
constitute copyright infringement.
And even asserts that:
Mr. Morel posted several photographs on Twitter in full resolution and with no
limitation on their use.
AFP then argues:
When Mr. Morel posted his photographs on Twitter, he made no notation that he was in any way limiting the license granted to Twitter . . . . Thus, a third party would reasonably assume that based on the Twitter Terms of Service and typical use, by posting his photographs on Twitter, Mr. Morel was granting the requisite license to Twitter and third parties to use, copy, publish, display
and distribute those photographs.
AFP concludes by stating that:
APP published Mr. Morel’s photographs in good faith with the understanding that
by posting them on Twitter, he had granted the requisite license to third parties to use,
copy, publish, display and distribute those photographs.
But the photographs were not posted on Twitter. They were posted on TwitPic. And TwitPic is a different company and it has a different Terms of Service. Nowhere does AFP acknowledge this. (Mr. Morel makes the same mistake in his Answer and Counterclaim.)
As noted by Techdirt, this case is a complete mess. As Techdirt points out, “[i]t appears that both parties are greatly confused about the law, terms of service and what each other did.” Neither side seems to know the difference between TwitPic and Twitter. Techdirt explains “The photos were posted to TwitPic , not Twitter. While many people don’t seem to realize this, TwitPic is not a part of Twitter, but is a separate company. Thus, Twitter’s licensing terms are somewhat irrelevant.”
And Twitpic’s Terms of Service unequivocally states: “All images uploaded are copyright © their respective owners.”
This case demonstrates why all lawyers should blog and use social media. If you tweet, you would know that you cannot upload or post photographs on Twitter. The only thing you can put on Twitter is 140 characters.
This is a link to Mr. Morel’s Answer and Counter-claim.
Source: Media Nation