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IP: Twitter terms of service do not provide “others” with affirmative defense to copyright infringement

Absent a statement to the contrary, content on the Internet is not dedicated to the public domain and free for all to reproduce and distribute

Just because content is posted on the Internet does not mean it is free for reproduction and redistribution without permission. An original work of authorship fixed in a tangible medium of expression is protected under federal copyright laws. Copyright protection attaches automatically the moment an original work is created. Neither registration nor notice is required for the work to be protected. There are benefits to timely registration, however, the primary of which is the availability of statutory damages in lieu of actual damages for infringement. If elected, statutory damages can be up to $30,000 per infringement or up to $150,000 for willful infringement at the discretion of the court.

The owner of the copyrights in a work has the exclusive rights to reproduce, distribute, display, perform and make derivative works of the original work. Publishing a work on the Internet does not divest the copyright owner of those rights.

Daniel Morel is a photojournalist. When a devastating earthquake struck Haiti in 2010, Morel was on the scene. He captured a number of images of the aftermath and posted the photographs on Twitter through his TwitPic account. A number of publications, including Agence France Presse (AFP), the Washington Post, along with photo warehouse Getty Images, copied Morel’s photos to their databases and/or published the photos on their web sites. AFP sued for a declaration of noninfringement, and Morel counterclaimed for copyright infringement.

The counterclaim defendants did not contest that they engaged in conduct with regard to Morel’s photos that, absent a valid affirmative defense, would infringe Morel’s exclusive rights to reproduce, distribute and publicly display the photos. Instead, AFP et al. argued that by posting the photos on Twitter, Morel granted them a license to reproduce, distribute and display the photos.

The Twitter Terms of Service (TOS) undisputedly applied to Morel’s photos posted on Twitter. The parties disputed, however, whether the TOS granted the counterclaim defendants, in addition to Twitter, a license to use those photos.

The Twitter TOS provided in relevant part:

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).

You agree that this license includes the right for Twitter to make such Content 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.

Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

None of the counterclaim defendants partnered with Twitter or received express consent from Twitter to redistribute Morel’s photos. The counterclaim defendants argued that they were third-party beneficiaries of the license agreement between Morel and Twitter, claiming in particular that the Twitter TOS intended to confer a benefit, in the form of a license, on Twitter’s “other users.”

In granting Morel’s motion for summary judgment of copyright infringement as to AFP and the Washington Post, the court held that an “individual may be a third-party beneficiary to a contract if the terms of the contract ‘necessarily require’ that the promisor conferred a benefit on that third party.” The court reasoned that the Twitter TOS did not necessarily require that Morel conferred a benefit on AFP et al. as third party beneficiaries and thus there was no license grant and no affirmative defense for their infringement.

Absent an express statement to the contrary, content on the Internet is not dedicated to the public domain and free for all to reproduce and distribute. Before “borrowing” content, steps should be taken to acquire a license appropriate for the intended use. Conversely, content creators need to be aware of third party sites’ Terms of Use and the scope of rights content creators are granting to those sites and their affiliates by posting their original content on the sites.

Contributing Author

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Michael Smith

Michael T. Smith is of counsel at Birch Stewart Kolasch & Birch. He has practiced in the intellectual property field since 2001, focusing his practice...

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