By Erin Geiger Smith
NEW YORK (Reuters) - A judge has found that two news organizations improperly used images that a photojournalist had posted to Twitter in one of the first big tests of intellectual property law involving social media.
Agence France-Presse and The Washington Post infringed on the copyrights of photographer Daniel Morel in using pictures he took in the aftermath of the Haiti earthquake in January 2010, District Judge Alison Nathan in Manhattan ruled.
While AFP had argued that once the pictures appeared on Twitter they were freely available, the judge said that Twitter's terms of service did not give the news agency a license to publish the images without Morel's permission.
The judge, in a decision released late Monday, partially granted Morel's summary judgment motion but also limited damages he could potentially recover. Several other issues in the case were left to be decided at trial. A trial date has not been set.
The case has garnered wide interest because it is one of the first to address how images that users make available to the public through social media can be used by third parties for commercial purposes.
Though this case began in 2010, ownership of content on social media continues to be a hot-button issue. Last month, Facebook Inc's photo sharing site, Instagram, became the subject of public outcry after users interpreted changes in its terms of service to mean Instagram could sell their pictures without permission. Within days, Instagram backed away from some of the planned changes.
TERMS OF SERVICE
In the Morel case, the photographer put the Haiti images on Twitter, and they were then disseminated widely after an AFP editor discovered them through another Twitter user's account, according to the ruling.
AFP distributed several of the pictures to Getty Images, the ruling said. The Washington Post, a Getty client, published four of the images on its website, according to the ruling.
Getty is part of the litigation but the judge did not make any determination on the photographer's allegations of copyright infringement against it, noting that there were other issues yet to be resolved.
AFP had argued that Twitter's terms of service granted it the right to use Morel's images.
The judge, though, said that while the service terms do allow the reposting and rebroadcasting of users' images in certain circumstances, such as "retweeting" them, it does not grant a license for commercial use.
Attorneys for AFP were not immediately available for comment. The Washington Post, a unit of The Washington Post Co, and Getty also did not immediately respond to requests for comment.
Joseph Baio, a partner at Willkie, Farr & Gallagher who represents Morel, said the ruling proves that images taken from Twitter without permission cannot be used for commercial purposes and that the trial will determine the consequences for doing so.
Twitter was not a party in the case. "As has always been our policy, Twitter users own their photos," a Twitter spokesman said.
In the ruling, Nathan narrowed what Morel can recover from AFP and Getty for distributing the images.
While Morel had requested what the court said would amount to "tens or hundreds of millions of dollars" in statutory damages based on awards for each subscriber that used the images, the judge said AFP and Getty would only be liable, at most, for a single statutory damage award per image infringed.
AFP initiated the lawsuit in March 2010 to get a ruling that it wasn't infringing on copyrights after Morel had accused AFP of improper use of his pictures. Morel countersued AFP, Getty and The Washington Post.
The judge refused to grant Morel's motion for summary judgment on whether AFP, Getty and The Washington Post acted willfully, as well as whether the media companies violated Morel's rights under the Digital Millennium Copyright Act. The act prohibits providing or distributing false copyright information in order to conceal copyright infringement.
The case is Agence France Presse v. Morel, U.S. District Court for the Southern District of New York, No. 10-02730.
(Reporting By Erin Geiger Smith; Editing by Martha Graybow and Kenneth Barry)