Hundreds of pictures are uploaded to social media everyday. However, the law regarding the rights of third parties to use those images is still evolving.
In a recent copyright infringement decision, the U.S. District Court for the Southern District of New York clarified how Twitter’s terms of service impact a user’s rights to images he or she uploads to the site. The case involved photos taken by photojournalist Daniel Morel in the aftermath of the 2010 earthquake in Haiti.
The dispute arose when Morel posted the images to his Twitter account via TwitPic, and they were subsequently published by Agence France Presse (AFP), Getty Images Inc. and the Washington Post without his permission. Morel subsequently filed suit for copyright infringement.
In its defense, AFP argued that Twitter’s terms of service made it a third-party beneficiary of the license agreement between Morel and Twitter. The relevant part of the TwitPic’s terms of service state: “By uploading your photos to TwitPic you give TwitPic permission to use or distribute your photos on TwitPic.com or affiliated sites. All images uploaded are copyright © their respective owners.”
Twitter’s terms of service further state the following:
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, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed)… You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.
Based on the above language, AFP argued that Twitter’s terms of service intended to confer a benefit (in the form of a license) on Twitter’s “other users.” However, the court ultimately disagreed, ruling on summary judgment that the agreement did not provide AFP with an excuse for its conduct in this case.
As explained in the opinion, “The evidence does not reflect a clear intent to grant AFP a license to remove the Photos-at-Issue from Twitter and license them to third parties, nor does it ‘necessarily require’ such a license. Indeed, this is the fatal flaw in AFP’s argument: it fails to recognize that even if some re-uses of content posted on Twitter may be permissible, this does not necessarily require a general license to use this content as AFP has.”
As the court further noted, Twitter’s terms of service expressly detail the entities to whom a license is granted, namely Twitter and its partners. “Construing the Twitter TOS to provide an unrestrained, third-party license to remove content from Twitter and commercially license that content would be a gross expansion of the terms of the Twitter TOS. Indeed, if Twitter intended to confer such a benefit, it easily could have manifested this intent,” the court concluded.
Thus, the decision makes it clear that third parties cannot generally reuse photos posted to Twitter without receiving permission. Partners and other affiliates of Twitter, however, may be protected by the terms of service.