In the aftermath of the Haiti earthquake in early 2010, Agence France Presse posted a number of pictures of the disaster that it downloaded from an unrelated party’s Twitpic.com posting site (an affiliate of Twitter). AFP credited the account holder (incorrectly, as it turned out since he had, in turn copied from another Twitter link). The original photographer claimed copyright infringement. Recently, a federal District Court refused to dismiss AFP’s federal Declaratory Judgment action asserting that there was no infringement.
First, a few basics: copyright exists in a work when the creative work, in this case a digital photograph, is “fixed”, meaning in this case, when it is captured on the digital media. Registration does not affect copyright, only the rights and remedies of the copyright owner.
AFP argued that since Twitter’s Terms of Service grant a license from the Twitter user to twitter to post the pictures that extends to others who access and use the pictures from the twitter service. The Court disagreed. District Judge William H. Pauley acknowledged that the existence of a license is a valid defense to a copyright infringement claim. After all, he wrote, “it is a hallmark principal of copyright law that licensors may not sue their licensees for copyright infringement.” However, Judge Pauley ultimately concluded that Agence France Presse did not posses a valid license to use Morel’s photographs. Judge Pauley observed that the Terms of Service for Twitter and Twitpic “[b]y their express language . . . grant a license to use content only to Twitter and its partners. Similarly, Twitpic’s terms grant a license to use photographs only to Twitpic.com or affiliated sites.” Because Agence France Presse did not claim that it was a partner of Twitter or an affiliate of Twitpic, Judge Pauley held that it had not met its burden to establish that it had a license to use Morel’s photographs.
AFP also argued that it was a third party beneficiary of the license agreement between Morel and Twitter and Twitpic. Judge Pauley disagreed, stating that there was no intent to benefit AFP (or any other non-Twitter entity).