Morel case highlights the need for micro-blogging site to be more explicit on copyright, says Alicia Castleman

There was an interesting decision in the US recently about the intellectual property (IP) implications of posting a photo on Twitter. Professional photographer Daniel Morel – a man who has apparently spent more than 25 years in Haiti – posted dramatic photos of the earthquake that struck the country in January 2010. 

Morel had posted his shots on TwitPic – a Twitter-affiliated photo sharing site – saying he had "exclusive earthquake photos". Although no copyright notice appeared on the photos, the name Morel did appear on TwitPic.

Because the earthquake was major news, a number of international media companies asked Morel for permission to use the pictures.

However, Agence France-Presse (AFP) – a news agency that offers an international photo service – simply downloaded 13 of Morel's photos on to its Image Forum, and transmitted them to Getty Images, which in turn licensed them to various newspapers including The Washington Post.

In the circumstances, the court had to decide whether AFP's conduct constituted copyright infringement. 

A photograph is protected by the law of copyright. The owner of the copyright is generally the photographer, and the owner has the exclusive right to do various things with it: for example, to reproduce or to publish the photo. There are certain exceptions to the owner's rights, as discussed below. 

During the court proceedings, AFP did not contest Morel's copyright claims. The company's argument was that it was entitled to use the photos because they were freely available on Twitter. As a result, Twitter's Terms of Service became very relevant. 

These terms included the following: "By submitting… content… you grant us a worldwide, non-exclusive, royalty-free licence… to use, copy… such content", followed by "Tip: this licence is you authorising us to make your Tweets available to the rest of the world. But what's yours is yours – you own the content." 

The Terms of Service continued: "We encourage and permit broad re-usage of content" and "Twitter will have the right to make the content available to companies 'who partner with Twitter', as well as a licence to use photos on Twitpic.com or affiliated sites."

In his judgement, the judge said AFP was neither a partner nor an affiliate of Twitter's. He said further that, simply because Twitter encourages sharing, it does not follow that the person posting the content has waived all their rights. He said that Twitter's Terms of Service make it quite clear that the person who posts the photos owns the photos. 

The judge added that, while the Terms of Service make it clear that the user who posts photos does allow the re-posting or re-broadcasting of images in certain circumstances, such as re-tweeting, the user does not grant a licence to others for commercial use. 

The judge also said it was self-evident that the unauthorised commercial use of the photos would impair the photographer's ability to license the photos and dilute the value of their IP.

In the circumstances, therefore, AFP's defence of having a licence to use the photos failed. The company's defence that it was a so-called "third-party beneficiary" of an agreement between Twitter and Morel also failed because clearly Morel had never understood that Twitter was granting rights to other parties.

Thus, the judge found that Morel's claim of copyright infringement had to succeed. As for the issue of damages, this has been left for determination by a jury, although it is anticipated that the damages could be in the order of $1.2m (£787,000).

There has been considerable commentary on this case because it is thought to be the first decision that deals with this issue. Until now, most of the focus has been on the question of whether the people who post material such as photos on social media sites may be infringing copyright, rather than whether the people using that material are liable. 

It has been pointed out that Twitter could very simply change its Terms of Service to make it quite clear that the person posting content agrees to its use for commercial purposes. 

However, there has also been mention of the fact that when Facebook's photo sharing site Instagram made certain changes to its Terms of Service – which were interpreted to mean that Instagram could sell pictures that had been posted on the service, even without the user's permission – there was such an outcry that Facebook quickly backed down.

As mentioned, there are certain exceptions relating to the rights of the owner of the copyright in a photo.

For example, the South African Copyright Act states that the "fair dealing" defence, which enables newspapers and other media to make unauthorised use of written works without permission – provided they are used for reporting current events and that the source is credited – also applies to artistic works to the extent that it can.

It seems that a "reporting current events" defence can be applied to photographs. 

Therefore, the question arises: Would such a defence apply if a case like Morel came up in South Africa? It is hard to say, but I suspect not for one very simple reason: it seems to me that it would not be regarded as "fair dealing" for a media company to take a photo without paying for it, when it is clearly the industry norm to pay for photos.  

Alicia Castleman is a trade mark lawyer in the IP department of South African firm ENS.