Media and Entertainment Law Newsletter, January 2014

01/14/2014

Harsh Lessons on Social Media and Photography Use
by Alicia Calzada

Can news organizations take images from a social media site and use them without asking permission? Over a year ago, a federal judge in the Southern District of New York said no, and in November, a jury awarded the photographer in that case $1.22 million dollars for such conduct. The verdict should ring alarm bells for media companies everywhere.

The recent case of Agence France Presse v. Morel was full of drama and should change newsroom perceptions of what is acceptable when it comes to pulling content from social media. It began with a tragedy on a massive scale, when a 7.0 magnitude earthquake struck Haiti and killed nearly a quarter of a million people, and ended with a large verdict for a photographer whose images of the crisis were lifted from the Internet by a photo agency and sold around the world without the photographer’s permission. Photojournalist Daniel Morel was one of the first photographers to capture the devastation after the 2010 quake. But the infrastructure in Haiti was badly damaged and Morel struggled to send his pictures to his contacts through traditional means. So, Morel posted the images online using a service called “TwitPic,” a social media service that allows users to easily display photographs through Twitter.

Agence France Presse (AFP) claimed that the terms of service (TOS) of TwitPic provided AFP with a license to use the images and re-sell them. But the court held that, while the TOS granted a license to Twitter and its partners for a wide variety of uses, AFP was not one of those partners and, therefore, the TOS did not provide a license for AFP.

With the determination that the agencies had infringed Morel’s images, the dispute continued over the amount of damages and whether or not the infringement was willful. In November, a jury found that the infringement had been willful and awarded Morel the maximum allowable statutory damages - $150,000 for each of the eight images that were infringed, totaling $1.22 million dollars. Additional damages were awarded for a violation of the Digital Millennium Copyright Act (DMCA) for a lesser-known DMCA provision that bars falsifying copyright ownership information.

The AFP v. Morel ruling was very specific to the TOS of TwitPic at the time of the infringement; however, most social networking services have similar terms that grant broad rights to the social network to use and even relicense work, but not to every user or to the public at large.

News organizations who routinely grab images off of social media should re-examine their practices and educate their staff about the legal ramifications of using images without permission.

News organizations should also be acutely aware that many people post images online that are not their own. Because copyright infringement is a strict liability tort, meaning it doesn’t matter if you know you are infringing or not, newsrooms must take steps to verify the source of images that do not come from a known source.

Unfortunately, many employees who deal with photographs know little about copyright law and often make broad and incorrect assumptions. Education within the newsroom is essential to avoiding the fate of the Morel defendants.

For more information contact Laura Lee Prather at laura.prather@haynesboone.com or 512.867.8476 and Tom Williams at thomas.williams@haynesboone.com or 817.347.6625.

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