The idea that content made public on social media is fair game for anyone and everyone to use has received a major strike, as a U.S. District Judge has ruled that two news outlets were in the wrong when they republished a Twitter user's photos without his permission.
The case involves a photographer named Daniel Morel, who accused both the Agence France-Presse and The Washington Post of improperly selling his photos of the aftermath of the 2010 Haitian earthquake, which he published on Twitter.
Morel tweeted out the photos, which were disseminated by the AFP (they distributed "several" images to Getty Images). The Washington Post later published four of the images on its website, as they are a Getty Images client.
Although the AFP argued that the photos became fair game once they were publicly posted to Twitter, the Judge in the case disagreed. He claimed that Twitter's Terms of Service did not give them the right to license or publish Morel's photos without his permission.
Twitter's Terms of Service, like most social networks', explicitly express that users own their content - bottom line. "What’s yours is yours – you own your Content (and your photos are part of that Content)," says Twitter.
But Twitter, like most other social networks, also contains this clause giving themselves rights to distribute and publish said content:
You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
Twitter also gives its "ecosystem partners" rights to the content as well:
You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.
But that pertains to developers who use Twitter's API, not news outlets looking to run photos in a for-profit setting or companies looking to license said photos. The Judge was clear on that. He acknowledged that Twitter allows for retweeting (obviously), but not for commercial use of user content without their permission.
Twitter was never named a party in the case, as their terms clearly protect them from liability in cases like this.
The Judge didn't completely agree with Morel, however. Although Morel requested damages based on each Getty subscriber who used his photos, the Judge ruled that only AFP and Getty can be tapped for damages for each improperly distributed image.[via Reuters]