Mar 18 | 2013

Twitter’s Terms of Service Do Not Permit Third Parties to Commercially Use Content

Although it may be easy to circulate a photo posted on Twitter, a federal judge’s recent ruling makes it clear that a photographer still owns his copyright in an original “tweeted” photo, and third parties other than Twitter cannot license the photo without the creator’s permission.

The case centers on photos taken in Haiti shortly after the devastating earthquake in 2010. The photographer, Daniel Morel, posted the pictures on his Twitter account, and they were reposted by an individual that claimed Morel’s photographs as his own.  The Agence France Presse (AFP) searched the Internet and found pictures of the aftermath of the earthquake in Haiti.  These pictures, along with others AFP found, were uploaded to AFP’s system and distributed internationally as part of a subscription to its members.  Morel’s pictures, which were credited to the individual that had retweeted them, were transmitted by AFP to Getty Images.  Getty in turn, then licensed these pictures to the Washington Post.

In learning of Morel’s claims of copyright in the pictures, AFP requested a declaratory judgment from U.S. District Judge Alison Nathan of the Southern District of New York, specifically seeking a declaration of non-infringement of Morel’s copyright in the pictures. AFP argued that it could not be held liable because Morel granted it (and others) a license by posting the pictures on Twitter.  AFP contended that through Morel’s posting, he subjected the pictures to Twitter’s Terms of Service (TOS) governing uploaded content – thereby giving Twitter a license to distribute the photos and that AFP, Getty and the Washington Post then became third-party beneficiaries to Morel’s agreement with Twitter.   The court ultimately rejected AFP’s argument, because   Twitter’s TOS specify that while Twitter and its partners have a worldwide, non-exclusive, royalty-free license to use any material posted on the site, each user retains his rights to any content he submits, posts or displays.

While the judge declined to decide whether re-tweeting content on Twitter was infringement, third parties who try to license photos for commercial gain without the photographer’s permission were found to be infringing. In her ruling, the judge relied on the portions of Twitter’s TOS that state “what’s yours is yours – you own your Content.” The judge reasoned that permitting the Twitter license to be extended to benefit third parties “would be a gross expansion of the terms of Twitter’s TOS.”

Copyright law as applied to content appearing on social media sites like Twitter, Facebook and Instagram is still evolving, mostly because of the ease with which content posted online can be redistributed and shared. Social media sites’ terms often give users a non-exclusive, royalty-free license to use intellectual property posted on the site, but the terms of each site may differ. Facebook’s terms permit users to sublicense IP content, as do Instagram’s. Twitter also permits sublicenses, but as the judge’s opinion notes, that license only extends to “partners” of Twitter and not general users.  AFP and the others involved in this suit were considered general users.

This decision clarifies that content posted to social media sites like Twitter is still protected under copyright law and that third parties must seek a license from the content owner before reusing content posted on these sites. It also is a good reminder for website providers to re-examine their own Terms of Service to ensure that they have the most up-to-date language reflecting the current legal landscape.