In the US case of Agence France Presse v. Morel [2012] a series of iconic images of the Haitian earthquake taken by Daniel Morel and uploaded to Twitter were held to have been wrongly used by global news companies. Significantly, it is the first case that clarifies how photos uploaded to the ‘Twittersphere’ can legally be used by third parties in a commercial context.
It appears the public is developing a growing sense of entitlement to be served with up to date news almost instantaneously. In order to satisfy society’s visceral desire for photo evidence of events big and small, news corporations are forced to push the boundaries of reporting, increasingly at the expense of individuals’ intellectual property rights. This has encouraged the practise of news outlets swiping photos from what are veritable online photo goldmines (ie Instagram, Facebook, Twitter) under the misconception that license agreements encompass third party commercial organisations.
This was the case with regards to Daniel Morel, a professional photojournalist who found himself on the main street of Port au Prince when the 2010 Haitian earthquake struck. Ultimately, he was one of the sole individuals able to capture images of the destruction, secure internet coverage and upload the photos to his Twitter account. The facts are convoluted from this point on, but what really matters is that both Agence France Presse, Getty Images and their client The Washington Post, obtained his images and, without his consent and without crediting the photos to him, redistributed them worldwide. It was clear that both outlets knew the images were his and wilfully used them regardless. Morel subsequently sued all three entities under the Copyright Act 1976 and the Digital Millennium Copyright Act 1998 (DMCA).
How did Justice Nathan approach AFP and Getty’s respective defenses?
AFP sought to claim that as a result of Twitter’s expansive Terms of Service, they were in effect third party beneficiaries of Twitter’s license over Morel’s photos. Nathan J used this opportunity to elucidate who owns what when it comes to uploaded photos. Essentially, within the realm, and only within the realm of Twitter, photos can be re tweeted and posted without reference to copyright laws. Third parties, however, cannot then use these photos for their own commercial benefit under the same umbrella license.
Getty Images unsuccessfully tried to nestle itself into the exemption established in the Digital Millennium Copyright Act 1998. The Safe Harbor defence limits liability for internet service providers which meet a series of conditions. Getty’s attempt failed on two accounts; that they were a ‘passive internet provider’ and that they failed to remove Morel’s images once becoming aware of the infringement. Nathan J held that Getty’s activities in the marketing, sale, distribution, syndication and licensing of Morel’s images changed its status from being a “passive provider” of a space in which infringing activities happen to occur, to active participants in the process of copyright infringement.
In terms of damages, Nathan J found that Morel will be able to claim a single statutory damage award per image infringed (not damages for each use of every image as he tried to achieve).
As Morel stated, “they [AFP, Getty and the Post] stole my moment”. Nathan J’s judgement will serve as notice to news outlets like the AFP and Getty Images that photographs, which are really just ‘moments’ captured in time, are not free for the taking simply because they are publically viewable, but are still just as unique to the individual as if they had never been published at all.