The Tweet Stops Here: US Court Determines that Users own their Tweets and Third Parties copy them at their Peril

Type : Focus Paper A US court has recently held two media organisations, Agence France Press (AFP) and The Washington Post, liable for copyright infringement for the unauthorised use of images which had been uploaded by a photojournalist onto his Twitter account. The photographer also has a claim against Getty Images which will be heard, along with some aspects of the claim against AFP and The Washington Post and determined by a jury at a later date.

The Court's decision, albeit from a foreign jurisdiction, is an interesting development regarding the ownership of social media content which is increasingly used in news reporting: only last Wednesday it was reported that the London Evening Standard had used a photo of the helicopter crash in central London, uploaded onto Twitter by Craig Jenner, without first obtaining his authorisation and/or agreeing to any compensation1.

The Alleged Infringement

The 13 images in question depicted the aftermath of the earthquake which devastated Haiti in January 2010. The images were captured on the day of the disaster by the photographer, Daniel Morel, and posted onto Morel's Twitter account (PhotoMorel) using the website "Twitpic".

Shortly thereafter, the photos were re-tweeted by another individual, Lisandro Suero, who indicated that he had "exclusive" images of the earthquakes.

The images were found by AFP and uploaded onto their system for distribution (either by means of its wire or through "ImageForum" - a databank made available to customers). The images were forwarded to Getty and in turn made available to their customers (also by means of a newswire or databank). They were initially attributed to Suero.

The Post received 4 images from Getty and published them on its website, three of which were credited to Suero (along with AFP and Getty), and one which was credited to Morel (again, along with AFP and Getty). By this stage AFP and Getty were alerted to Morel's authorship and had taken some steps to correct the attribution, although clearly not completely.

Morel asserted copyright in the 13 images. This prompted AFP to issue proceedings against Morel, alleging commercial defamation and seeking declaratory relief to the effect that AFP had not infringed Morel's copyright in the images. Morel, in turn, brought a counter-claim for copyright infringement, joining Getty, The Post and television networks CNN, ABC and CBS to the proceedings (all collectively, the Media Parties). More specifically, he asserted that the Media Parties had infringed upon his exclusive rights to reproduce, display publicly, and distribute the images in question.

An attempt by some of the Media Parties to have the proceedings summarily dismissed failed in December 2010, following which the television networks settled their proceedings with Morel.

In 'round two', the parties filed cross-motions seeking summary judgment against...