Written by Louis J. Levy*
A recent court decision underscores the importance of exercising caution when using content found online (particularly on social media websites), and of training staff at all levels to direct communications alleging copyright infringement or other claims to counsel. Agence France Presse v.
In this case, the court ruled that two news organizations, Agence France Presse (“AFP”) and the Washington Post (the “Post”), committed copyright infringement by using images posted on Twitter of the aftermath of the January 2010 earthquake in Haiti. The decision derives from a complaint filed by AFP seeking a declaratory judgment against Daniel Morel, a well-known photojournalist, stating that AFP’s use of Morel’s image was not infringing. Morel filed counterclaims against AFP and Getty Images, among others, for copyright infringement and related claims, subsequently adding the Post, a Getty subscriber, to the complaint.
Daniel Morel was in Haiti at the time of the January 2010 earthquake and posted photos of the quake’s immediate aftermath through his TwitPic account to Twitter.1 The photos were later reposted to the Twitter account of a third party named Suero,2 and subsequently discovered and downloaded by an AFP photography director, who sent them to the AFP photo desk for processing.3 Under the terms of a reciprocal license agreement, AFP shared the photographs with Getty Images for licensing to th
II. KEY HOLDINGS
Ruling on cross-summary judgment motions, the United States District Court for the Southern District of New York found that AFP and the Post were directly liable for copyright infringement.10 Significantly, the court rejected AFP’s affirmative defense that, by posting his photos on Twitter, Morel had granted AFP a license to reproduce and distribute the photos.11 AFP had argued that Twitter’s Terms of Service (“TOS”) made AFP a third-party beneficiary of that license, free to post, license, or otherwise use the photos in a virtually unlimited way.12
Notwithstanding this holding against AFP and the Post, the court denied Morel’s motion for summary judgment that Getty was also directly liable for copyright infringement.17 Instead, the court ruled that there were unresolved issues of fact regarding Getty’s eligibility for the safe harbor under the Digital Millennium Copyright Act, 17 U.S.C. § 512, which Getty had asserted as an affirmative defense.18 AFP and the Post did not raise this defense.
III. OBSERVATIONS & RECOMMENDATIONS
In addition to these rulings, this case is also noteworthy because of the underlying facts, particularly with respect to the failure of the Post to adequately respond to initial communications from Morel’s counsel. Morel’s counsel had sent a letter to an officer of the Post’s parent company via a general corporate email address in March 2010 offering to allow the newspaper to keep the images on its website provided they were accompanied by a correct credit.19 This email, if received in the general corporate inbox, was never forwarded to the addressee.20 The Post also failed to respond to subsequent correspondence, including a letter sent by Fedex with copies to two general newsroom email boxes.21 (It is worth noting that the name of the addressee on this letter was misspelled).22 Only in June 2010, after a Ge
These facts underscore the importance of training all staff to understand that communications containing copyright infringement or other claims need to be forwarded to legal or other appropriate staff without delay. Also, safeguards should be in place to confirm that remedial actions are taken promptly and efficiently. In the case of the Post, had the initial letter from Morel’s counsel been forwarded to the appropriate individuals in the company, an easy, cost-free solution would have been available.
The decision also points to vulnerabilities that may exist even when images are properly licensed from stock photo services such as Getty. Here, the Post subscribed to Getty’s services, and believed it was fully entitled to use those photos. It did not know that the photos it downloaded contained incorrect credits. Nor did it know that Getty did not have the right to distribute Morel’s photos. As noted above, those rights belonged to Corbis Images. This fact pattern suggests that, when using images from stock image services, if there is any doubt about their provenance, it would be prudent to confirm, to the extent practicable, that the service in fact has the right to distribute the image to be used.
*Louis J. Levy is an attorney with the law firm of Lerman Senter PLLC, specializing in the fields of trademark, copyright, e-commerce, and data privacy and protection. He can be reached at firstname.lastname@example.org.
1 Morel, at *1.
3 Id. at *2.
6 Id. at *3-4.
7 Id. at *4.
9 Id. at *6-7.
10 Id. at *12-13.
11 Id. at *8-11.
13 Id. at *11.
14 Id. at *9.
15 Id. at *13.
16 Id. at *11.
17 Id. at *16.
19 Id. at *6.
24 Id. at *7.