Copyright Claims to Images Posted on Twitter

If you are a technology or intellectual property lawyer and the phrase “social network” does not send chills up your spine, you aren't paying attention. The fundamental currency among users of social networking services is shared information; the greater the perceived value of the information, the higher the status of the user. Thus, social networks are an intellectual property minefield.

The content that a user posts to a social networking site may or may not belong to that user: It may contain elements that belong to others; it may contain confidential, defamatory or otherwise actionable material; it may generate a thread of comments (all of which may belong to their respective authors); and it may reference or link to material that belongs to others. The expectation ' indeed the hope ' is that all of this content, with its attendant complex web of rights, will be widely shared and republished to as many other users as possible.

To make matters worse, the only contracts purporting to sort out this mess of statutory and common law rights are the Terms of Service of the various sites to which users agree (generally without reading them) when they log in. Many of these agreements are so vague or inconsistent regarding intellectual property rights that they may as well not exist at all. Nonetheless, they are the only place a court has to look when issues arise.

When users “share” content on a social networking site, the Terms of Service generally state that the user grants the site a license (typically with right to sublicense) to use, alter and distribute the content. To protect the hosting sites, these licenses must be broad and difficult to revoke, because the real power of social networking is not in publication, it is in republication.

This is the fundamental economy of the social networking universe: Tastemakers strive to be widely followed and to have their content widely republished. Once again, IP lawyers should be shuddering: What, as a practical matter, does that mean for intellectual property rights?

These issues are at the heart of Agence France Presse v. Morel, 10 Civ. 2730 (WHP) (S.D.N.Y. Dec. 23, 2010), a case currently pending in the U.S. District Court for the Southern District of New York (available at http://scr.bi/fAVXZg). The court's recent decision denying plaintiffs' motion to dismiss defendant's copyright and related counterclaims treats these questions in some detail, and offers an interesting look at the limits of acceptable use in the context of one social networking “universe” ' specifically that of Twitter and its affiliates.

Economy of Shared Information

The highly public nature of Twitter's content has made it a natural for branding, marketing and news distribution. Twitter is an economy of shared information. It assumes (unless told otherwise) that every piece of information is entirely public and available for reuse.

By default, new followers are automatically permitted (unlike Facebook, which requires that new “friends” be confirmed) and the retweet of someone else's 140-character observation is the ultimate compliment. People tend to use Twitter as a constantly updating information ticker. All of this information is intended to be shared without reservation ' a concept that may be entirely foreign to a generation that grew up with different notions of privacy and different standards for information density.

That kind of sharing is a double-edged sword: Once content is part of a sharing economy, it can be difficult (as a legal matter) to define the boundaries of that economy. For example, one service related to Twitter, Twitpic, provides hosting for images that can be uploaded and “shared” through links to Twitter. Images posted to Twitpic can be linked to a user's Twitter stream and then retweeted exactly like any other Twitter content. They are searchable and viewable by anyone, but according to Twitpic's Terms of Service, are still “owned” by the photographer.

The fundamental question ' the one at issue in Agence France Presse (AFP) ' is what that means as a legal matter. How far is an image allowed to go once it is posted to Twitpic? Certainly, it can be tweeted and retweeted. But what rights has the copyright owner retained, if any, and why are those rights different from the ones he or she has given up?

A Tangled Web

AFP is a social networking case that reads like a law-school exam question. Daniel Morel is a professional photojournalist who has worked in Haiti for 25 years and was in Port au Prince when the 2010 earthquake hit. His photos of the devastation were some of the first to come out of Haiti.

Although communications with Haiti were massively disrupted on the day of the quake, Morel was able to get on the Internet and get his images out that same afternoon by posting them to his Twitpic page. On the page (though not on the photos themselves), Morel posted the attributions “Morel” and “by photomorel.” Morel then tweeted that he had “exclusive earthquake photos” and linked to his Twitpic page. Morel asserts, in his counterclaims, that he posted the photos to break news of the earthquake while retaining his copyrights and receiving credit and compensation for potentially licensing his photos.

This being Twitter, however, things did not work out that way. A few minutes after Morel posted his photos, Lisandro Suero, a resident of the Dominican Republic, copied Morel's photos and posted them on his Twitpic page (without attribution). Suero tweeted that he had “exclusive photographs of the catastrophe for credit and copyright.”

Over the next 24 hours, numerous news organizations contacted Morel seeking permission to use his photos, including four representatives of CBS and five representatives of CNN. In addition, within an hour of Morel's posting, a photo editor from Agence France Presse, a French news agency, placed a link in his Twitter stream to Morel's Twitpic page. An hour later, however, that same editor contacted Suero to secure the photos and downloaded them from Suero without informing Morel.

AFP then added the photos to its image database, transmitted them to Getty, an image licensing company with exclusive rights to license AFP's photos in the U.S. and the U.K., and began licensing them to news outlets with the attribution “AFP/Getty/Lisandro Suero.”

Over the next several days, Morel's images appeared on CNN, CBS, and in other media, becoming some of the iconic images of the disaster. Morel and his exclusive photo agent, Corbis, took aggressive measures to protect the images, including forcing AFP to issue “kills” for some of the images, but the images nonetheless remained in use by various AFP and Getty licensees, uncredited to Morel.

Eventually, AFP sued for a declaratory judgment that it had not violated Morel's copyrights, and Morel countersued AFP, Getty, CBS, ABC, and various other Getty and AFP licensees for copyright infringement, removal of attribution (under the Digital Millennium Copyright Act (“DMCA”)) and trademark infringement. AFP moved to dismiss, and the court denied the motion as to the copyright and DMCA claims.

Limits of Sharing

The plaintiffs in AFP essentially argued that, by posting his images to a forum in which they could be (and were expected to be) endlessly shared and republished, Morel had granted an implied license to AFP and Getty (and, presumably Suero and the sub-licensees) to use those images.

Morel argued that he had intended to retain copyright in his images.

The court noted that, rather than any “implied” license, Morel's submission of his images was governed by an explicit content license set out in the operative Terms of Service.

Twitpic is a separate company from Twitter, but its login page states that “[b]y clicking 'Allow', you continue to operate under Twitter's Terms of Service.”

The Twitter Terms of Service grant Twitter “a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute” all posted content. The terms note: “Tip[:] This license is you 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 own content.” The terms also state that “[w]e encourage and permit broad reuse of Content.” Later, however, the terms clarify that the license grants “the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter.”

Reviewing this language, the court found that the broad, general language regarding reuse of content was limited by the specific language limiting sublicenses to companies that are Twitter partners. It held that, under the plain language of the Terms of Service, Morel had “necessarily” granted rights to two classes of entities: Twitter partners and Twitter's explicit sublicensees.

Since neither AFP nor Getty could allege that it was a Twitter partner or sublicensee, the court rejected its “implied license” argument and its similar argument that (as a Twitter user) it was a third-party beneficiary of the Twitter Terms of Service. Since these were the only issues on the motion to dismiss the direct infringement claims, the court denied the motion as to those claims.

Finally, the court addressed Morel's DMCA claim for the removal of “copyright management information” “(CMI)” from his images. This is an interesting analysis because there is a substantial split of authority, including within New York's federal courts, over whether CMI (which can include attribution lines and other identifying information) must be a part of an “automated” copyright management system to be subject to the requirements of the DMCA. (Compare IQ Group v. Weisner Publ'g Inc., 409 F. Supp 2d 587, 597 (D.N.J. 2006) (http://bit.ly/ewpwCn) (CMI must be a component of automated system) and Silver v. Lavandreria, No. 08 Civ. 6522 (JSR(DF), 2009 WL 51303, at 2 (S.D.N.Y Feb 26, 2009) (same) with Associated Press v. All Headline News Corp., 608 F.Supp.2d 454, 462 (S.D.N.Y. 2009) (http://bit.ly/gUQyTk) (CMI need not be part of automated system).

In AFP, the court held that there was nothing in the statutory language to suggest that CMI should be defined to include only elements that are part of an automated system, nor that CMI must be included on the photo (rather than on an associate Web site). It therefore denied plaintiffs' motion to dismiss the claims against them for removal of Morel's attribution lines.

Conclusion

The decision in AFP ' that Morel was entitled to attribution and compensation for the use of his photographs by major news organizations ' is intuitively correct, and it is also a sound legal decision based on the Terms of Service at issue.

It is interesting, however, to consider how the decision plays out against the expectations of typical Twitter users and the social networking economy generally.

The decision appears to draw a line around the universe of Twitter and its affiliates and to permit unfettered use of posted content within that universe, regardless of the character of that use, commercial or otherwise. Arguably, that is what Twitter users expect, though some plainly expect and hope for even broader distribution, but that expectation has some strange real-world connotations.

Had CNN simply linked to Morel's photos on his Twitpic page from its Twitter stream or even from its own Web site, it would have been well within the Terms of Service. Had it copied the pictures to its own Twitpic page and linked to them from its Twitter stream it would also have been within the terms.

Given CNN's 1.5 million followers, this would have substantially compromised the economic value of Morel's intellectual property, but it would have been perfectly legal and (given the Twitter ethos) it is possible that Morel would not even have objected to it.

Anecdotally, users tend to object when their content is used commercially without their permission, not when it moves outside the “Twitter-sphere.” Thus, the license users actually grant when they post content to Twitter may differ substantially from their expectations. As long as that distinction is not found in the Twitter Terms of Service, however, it will remain absent from the law.

If you are a technology or intellectual property lawyer and the phrase “social network” does not send chills up your spine, you aren't paying attention. The fundamental currency among users of social networking services is shared information; the greater the perceived value of the information, the higher the status of the user. Thus, social networks are an intellectual property minefield.

The content that a user posts to a social networking site may or may not belong to that user: It may contain elements that belong to others; it may contain confidential, defamatory or otherwise actionable material; it may generate a thread of comments (all of which may belong to their respective authors); and it may reference or link to material that belongs to others. The expectation ' indeed the hope ' is that all of this content, with its attendant complex web of rights, will be widely shared and republished to as many other users as possible.

To make matters worse, the only contracts purporting to sort out this mess of statutory and common law rights are the Terms of Service of the various sites to which users agree (generally without reading them) when they log in. Many of these agreements are so vague or inconsistent regarding intellectual property rights that they may as well not exist at all. Nonetheless, they are the only place a court has to look when issues arise.

When users “share” content on a social networking site, the Terms of Service generally state that the user grants the site a license (typically with right to sublicense) to use, alter and distribute the content. To protect the hosting sites, these licenses must be broad and difficult to revoke, because the real power of social networking is not in publication, it is in republication.

This is the fundamental economy of the social networking universe: Tastemakers strive to be widely followed and to have their content widely republished. Once again, IP lawyers should be shuddering: What, as a practical matter, does that mean for intellectual property rights?

These issues are at the heart of Agence France Presse v. Morel, 10 Civ. 2730 (WHP) (S.D.N.Y. Dec. 23, 2010), a case currently pending in the U.S. District Court for the Southern District of New York (available at http://scr.bi/fAVXZg). The court's recent decision denying plaintiffs' motion to dismiss defendant's copyright and related counterclaims treats these questions in some detail, and offers an interesting look at the limits of acceptable use in the context of one social networking “universe” ' specifically that of Twitter and its affiliates.

Economy of Shared Information

The highly public nature of Twitter's content has made it a natural for branding, marketing and news distribution. Twitter is an economy of shared information. It assumes (unless told otherwise) that every piece of information is entirely public and available for reuse.

By default, new followers are automatically permitted (unlike Facebook, which requires that new “friends” be confirmed) and the retweet of someone else's 140-character observation is the ultimate compliment. People tend to use Twitter as a constantly updating information ticker. All of this information is intended to be shared without reservation ' a concept that may be entirely foreign to a generation that grew up with different notions of privacy and different standards for information density.

That kind of sharing is a double-edged sword: Once content is part of a sharing economy, it can be difficult (as a legal matter) to define the boundaries of that economy. For example, one service related to Twitter, Twitpic, provides hosting for images that can be uploaded and “shared” through links to Twitter. Images posted to Twitpic can be linked to a user's Twitter stream and then retweeted exactly like any other Twitter content. They are searchable and viewable by anyone, but according to Twitpic's Terms of Service, are still “owned” by the photographer.

The fundamental question ' the one at issue in Agence France Presse (AFP) ' is what that means as a legal matter. How far is an image allowed to go once it is posted to Twitpic? Certainly, it can be tweeted and retweeted. But what rights has the copyright owner retained, if any, and why are those rights different from the ones he or she has given up?

A Tangled Web

AFP is a social networking case that reads like a law-school exam question. Daniel Morel is a professional photojournalist who has worked in Haiti for 25 years and was in Port au Prince when the 2010 earthquake hit. His photos of the devastation were some of the first to come out of Haiti.

Although communications with Haiti were massively disrupted on the day of the quake, Morel was able to get on the Internet and get his images out that same afternoon by posting them to his Twitpic page. On the page (though not on the photos themselves), Morel posted the attributions “Morel” and “by photomorel.” Morel then tweeted that he had “exclusive earthquake photos” and linked to his Twitpic page. Morel asserts, in his counterclaims, that he posted the photos to break news of the earthquake while retaining his copyrights and receiving credit and compensation for potentially licensing his photos.

This being Twitter, however, things did not work out that way. A few minutes after Morel posted his photos, Lisandro Suero, a resident of the Dominican Republic, copied Morel's photos and posted them on his Twitpic page (without attribution). Suero tweeted that he had “exclusive photographs of the catastrophe for credit and copyright.”

Over the next 24 hours, numerous news organizations contacted Morel seeking permission to use his photos, including four representatives of CBS and five representatives of CNN. In addition, within an hour of Morel's posting, a photo editor from Agence France Presse, a French news agency, placed a link in his Twitter stream to Morel's Twitpic page. An hour later, however, that same editor contacted Suero to secure the photos and downloaded them from Suero without informing Morel.

AFP then added the photos to its image database, transmitted them to Getty, an image licensing company with exclusive rights to license AFP's photos in the U.S. and the U.K., and began licensing them to news outlets with the attribution “AFP/Getty/Lisandro Suero.”

Over the next several days, Morel's images appeared on CNN, CBS, and in other media, becoming some of the iconic images of the disaster. Morel and his exclusive photo agent, Corbis, took aggressive measures to protect the images, including forcing AFP to issue “kills” for some of the images, but the images nonetheless remained in use by various AFP and Getty licensees, uncredited to Morel.

Eventually, AFP sued for a declaratory judgment that it had not violated Morel's copyrights, and Morel countersued AFP, Getty, CBS, ABC, and various other Getty and AFP licensees for copyright infringement, removal of attribution (under the Digital Millennium Copyright Act (“DMCA”)) and trademark infringement. AFP moved to dismiss, and the court denied the motion as to the copyright and DMCA claims.

Limits of Sharing

The plaintiffs in AFP essentially argued that, by posting his images to a forum in which they could be (and were expected to be) endlessly shared and republished, Morel had granted an implied license to AFP and Getty (and, presumably Suero and the sub-licensees) to use those images.

Morel argued that he had intended to retain copyright in his images.

The court noted that, rather than any “implied” license, Morel's submission of his images was governed by an explicit content license set out in the operative Terms of Service.

Twitpic is a separate company from Twitter, but its login page states that “[b]y clicking 'Allow', you continue to operate under Twitter's Terms of Service.”

The Twitter Terms of Service grant Twitter “a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute” all posted content. The terms note: “Tip[:] This license is you 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 own content.” The terms also state that “[w]e encourage and permit broad reuse of Content.” Later, however, the terms clarify that the license grants “the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter.”

Reviewing this language, the court found that the broad, general language regarding reuse of content was limited by the specific language limiting sublicenses to companies that are Twitter partners. It held that, under the plain language of the Terms of Service, Morel had “necessarily” granted rights to two classes of entities: Twitter partners and Twitter's explicit sublicensees.

Since neither AFP nor Getty could allege that it was a Twitter partner or sublicensee, the court rejected its “implied license” argument and its similar argument that (as a Twitter user) it was a third-party beneficiary of the Twitter Terms of Service. Since these were the only issues on the motion to dismiss the direct infringement claims, the court denied the motion as to those claims.

Finally, the court addressed Morel's DMCA claim for the removal of “copyright management information” “(CMI)” from his images. This is an interesting analysis because there is a substantial split of authority, including within New York's federal courts, over whether CMI (which can include attribution lines and other identifying information) must be a part of an “automated” copyright management system to be subject to the requirements of the DMCA. (Compare IQ Group v. Weisner Publ'g Inc. , 409 F. Supp 2d 587, 597 (D.N.J. 2006) ( http://bit.ly/ewpwCn ) (CMI must be a component of automated system) and Silver v. Lavandreria , No. 08 Civ. 6522 (JSR(DF), 2009 WL 51303, at 2 (S.D.N.Y Feb 26, 2009) (same) with Associated Press v. All Headline News Corp. , 608 F.Supp.2d 454, 462 (S.D.N.Y. 2009) ( http://bit.ly/gUQyTk ) (CMI need not be part of automated system).

In AFP, the court held that there was nothing in the statutory language to suggest that CMI should be defined to include only elements that are part of an automated system, nor that CMI must be included on the photo (rather than on an associate Web site). It therefore denied plaintiffs' motion to dismiss the claims against them for removal of Morel's attribution lines.

Conclusion

The decision in AFP ' that Morel was entitled to attribution and compensation for the use of his photographs by major news organizations ' is intuitively correct, and it is also a sound legal decision based on the Terms of Service at issue.

It is interesting, however, to consider how the decision plays out against the expectations of typical Twitter users and the social networking economy generally.

The decision appears to draw a line around the universe of Twitter and its affiliates and to permit unfettered use of posted content within that universe, regardless of the character of that use, commercial or otherwise. Arguably, that is what Twitter users expect, though some plainly expect and hope for even broader distribution, but that expectation has some strange real-world connotations.

Had CNN simply linked to Morel's photos on his Twitpic page from its Twitter stream or even from its own Web site, it would have been well within the Terms of Service. Had it copied the pictures to its own Twitpic page and linked to them from its Twitter stream it would also have been within the terms.

Given CNN's 1.5 million followers, this would have substantially compromised the economic value of Morel's intellectual property, but it would have been perfectly legal and (given the Twitter ethos) it is possible that Morel would not even have objected to it.

Anecdotally, users tend to object when their content is used commercially without their permission, not when it moves outside the “Twitter-sphere.” Thus, the license users actually grant when they post content to Twitter may differ substantially from their expectations. As long as that distinction is not found in the Twitter Terms of Service, however, it will remain absent from the law.