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Landmark case may set grounds for fair use over photos shared on Twitter

Twitter corporate censorship

When we republish images, whether to use on our blogs or by simply retweeting, we don’t bat an eye or give copyright laws a thought. Social networking is about sharing, isn’t it? And this train of thought extends to news organizations. You’ll see images from Twitter and Instagram liberally accompanying printed and broadcasted news. But in a landmark case that may set policies over fair use of images shared on social networks, a judge has ruled that using someone else’s images for commercial use, even if it was shared to Twitter, is still subject to copyright laws.

This lawsuit, started in 2010 by photographer Daniel Morel, involves eight photographs taken in the wake of the Haiti earthquake. They were discovered on Twitter and distributed by Agence France-Presse to Getty Images. The images were at first mistakenly attributed to a Lisandro Suero, who claimed that he had the exclusive rights to the photographs based on a tweet. This later was found to be a misrepresentation. The case states that the AFP was scrambling to figure out the right person to credit for the images when its editor realized that these photographs in question may not even belong to Suero. By then it was too late.

The Washington Post, which is a Getty subscriber, published four images for commercial use and credited three of four photographs to Suero, while attributing one photo to Morel. Also what should be noted here was that Morel was exclusively a photographer to Corbis Images, a Getty competitor.

The dispute lies in whether AFP and The Washington Post were with their rights to use these images without permission. And the AFP isn’t giving up without a fight. The news syndication service argues that the photos published to Twitpic and then Twitter, automatically granted the AFP a license, while Getty Images is “entitled to the benefit of the DMCA safe-harbor.” In other words, Getty believes that it should be immune, in the same way that YouTube was legally granted safe-harbor for the videos that are republished to its site.

According to Reuters, the judge argues and ruled that while Twitter’s terms of use enable the republishing and rebroadcasting of user generated images, that doesn’t necessarily grant a license for parties interested in images for commercial use. Twitter, surprisingly, commented on a lawsuit and told Reuters that, “As has always been our policy, Twitter users own their photos.”

But it’s a little more complicated than this. Twitter does encourage republishing of Twitter content where it applies to broadcast or offline media based on its guidelines. But under said guidelines the publishers are required to attribute the republished photograph with the full text of the tweet and the owner of that tweet. The AFP, Getty, and The Washington Post neglected this detail. It’s only one part of the issue however. Ultimately, according to the case, the judge ruled that based on Twitter’s terms of service, the only parties that are legally able to use images published to Twitter for commercial use without compensation are Twitter and its partners, meaning the AFP (which is not a Twitter partner) had been infringing on Morel’s copyright without his permission.

Long story short, if you want to retweet or republish content only on Twitter, you’re within your right to do so. If you want to use someone else’s photographs (granted the photographs are their property) then you better get permission from the owner… or try to woo Twitter into a partnership.

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