Photographer Daniel Morel vs. AFP — Copyright Infringement.

Let’s say that you just happen to be in the right place, at the right time, with your camera, and just happen to snap some photos of a rarely seen celebrity or even a potential big news event. You then go home, upload your photos  and tweet about your wild experience.  You just can’t wait to share with your close friends and family members.  These are not free stock photos, as you have not given permission for anyone to repost or  sell them.

Fast forward a day or so. What do you notice? Those photos you shared are now all over the Internet, and even in some print publications.  Others are now benefiting financially from your photos and you have not been paid one red cent.  What do you do?  Well if you are Morel, famed photographer Daniel Morel–that is, you trot yourself off to the nearest court and file a civil lawsuit for copyright infringement against Twitter, Getty, and Agence France Presse.

This is exactly what happened to professional photographer Daniel Morel in 2010 when he used Twitter to announce that he had exclusive photos of the tragic Haiti earthquake that were available to publications for license.  He then uploaded some of the photos to TwitPic, whose terms of service are subject to Twitter. When Morel uploaded the photos to TwitPic they were promptly stolen by an individual by the name of Lisandro Suero, who is not a photographer and had nothing to do with the exclusive photos. Mr. Suero promptly offered the pictures up for licensing. Fortunately for Daniel Morel, most reputable news outlets knew of him, and recognizing the work as his, contacted him for licensing the photos.

Implied license to distribute the images to all users of Twitter?

One of these news services was AFP (Agence France-Presse) who e-mailed Morel saying they were interested in his photos. When Morel didn’t immediately respond to the e-mail, they downloaded the photos from the TwitPic page of the man who stole them, Lisandro Suero. AFP then distributed the images without giving credit to Morel, instead giving the credits to AFP/Getty/Lisandro Suero. Daniel Morel filed a copyright infringement suit against AFP saying he never intended to surrender his copyright. He argued that AFP not only e-mailed him for permission before they started using his images, but also after they already began distributing them, claiming this proved they knew he had the exclusive rights to them.

AFP argued that by uploading his photos to TwitPic, Morel was granting an implied license to distribute the images to all users of Twitter. In a preliminary ruling, New York District court Judge William H. Pauley ruled that AFP was misinterpreting Twitter’s terms of service policy. The Judge went on to say that the terms of service were specific in stating that only Twitter and its partners and affiliates had the right to use, publish, distribute, copy and reproduce content uploaded to Twitter, and that AFP and the other defendants “do not meet their burden to establish that they had a license to use Morel’s photographs.”

Will the Case be Appealed?

In spite of the ruling, this case is not completely settled, not just yet. AFP can still re-argue the case in front of a jury in attempt to prove that they did not violate Morel’s copyright.  So don’t get too excited, this may not be the end of the road.  If the case is appealed, you never know how a different court may rule.And, regardless of the Judge’s ruling that seemingly prevents big media companies from using ones content without permission, there are lessons to be learned.

Lessons to be Learned by Content Creators.

If you are a content creator of photos, screenplays, articles, eBooks, videos, and other content, if I’ve said it once, I will say it again–READ and UNDERSTAND all contracts BEFORE you accept them.  And, know that Terms of Use and Terms of Service are enforceable agreements.  Know what you are giving up and agreeing to before you upload your value content.  Mr. Morel was willing to go the extra yard, and he obviously had the money or the connections to do so.

Not all of you will be that financially and emotionally able to initiate and follow-through with a protracted lawsuit.  In the meantime, if you aren’t sure what those legal terms really mean, then by all means seek out help from a legal professional who can help you figure it out.  It’s worth the effort and the few bucks you will spend on the front ending.  See the case’s Facebook Fan Page.

What do you think? How do you handle terms of service policies? Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Join the conversation on my Facebook Fan Page, my Twitter page, or in one of my LinkedIn Groups.

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