Agence France Presse v. Morel, No. 10 Civ. 02730, 2013 WL 146035 (S.D.N.Y. Jan. 14, 2013)

Photographer Daniel Morel has accused some of the world’s most well-known media organizations, Agence France-Presse (“AFP”), Getty Images (“Getty”), and The Washington Post (“The Post”) (collectively, “defendants”), of copyright infringement. Morel captured and tweeted photos of the devastation that followed the 2010 Haiti earthquake, and the defendants concede that they did in fact reproduce, publicly display, and distribute eight of the photos, violating Morel’s exclusive rights under the Copyright Act. However, the defendants claimed an affirmative defense to direct copyright infringement that precludes liability. Defendants argued, among other things, that according to Twitter’s then-existing Terms of Service (“TOS”), by tweeting and posting the photos via TwitPic, Morel granted the defendants a general license. If a valid license for the use of a copyrighted work exists, and only the scope of the license is at issue, the copyright owner bears the burden of proving that the defendant’s copying was unauthorized.

The U.S. District Court for the Southern District of New York denied summary judgment for the defendants and found that Twitter’s TOS granted no such license for their conduct. First, the court found that defendants were not third-party beneficiaries to the Twitter TOS agreement between Twitter and its users, because no intent to benefit such third parties was clearly manifested. Second, the court determined that it would be a gross expansion of Twitter’s TOS to construe them to provide an unrestrained, third-party license to remove content from Twitter and commercially license it. Third, the court analyzed the language in the TOS, and found that the terms not only failed to support the defendants’ argument, but they actually cut against a finding that Twitter intended to construe such a benefit. Defendants ignored key language, including a reference permitting use of content posted via Twitter only by “other users” rather than by “others,” indicating that any third-party license was likely limited to users of Twitter within the site, via re-tweets, etc., and not in the manner used by the defendants.

The District Court granted summary judgment on this issue in favor of Morel; but because Getty offered further arguments on the issue of direct liability, and questions of fact still remained on issues of willful infringement and secondary liability, among others, the summary judgment motions as to all other issues were denied.


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