Canada: Photographer Wins US$1.2-Million For Photos Taken From Social Media

A federal jury in New York City recently awarded photographer Daniel Morel US$1.2-million in damages for copyright infringement after two media companies sold photographs he posted to Twitter. The case, Agence France Presse v. Morel, highlights the risks that social media can present to news organizations and others who take content from the Internet, and it underscores the importance of ensuring that any use of copyrighted content is licensed or qualifies as fair dealing under Canadian law.

FACTS

Morel was in Haiti when that country suffered a major earthquake in January 2010. He posted a number of photographs of the devastation to Twitter. A photography editor at Agence France Presse (AFP), a wire service, downloaded Morel's photographs. AFP had an agreement to share photographs with Getty Images, which licenses stock photographs to businesses and media organizations. AFP sent the photographs to Getty, which licensed them to news organizations including the Washington Post (Post), CNN, and ABC.

Morel sued AFP, Getty and a number of news organizations who had published the images for copyright infringement. Most of the defendants settled with Morel in 2011, leaving only AFP, Getty, and the Post.

On a motion for summary judgment, the defendants argued that Morel had essentially surrendered the copyright to his photographs when he posted them on Twitter, giving them the right to use the photographs. The argument focused on Twitter's terms of use. In a decision released in January 2013, Judge Alison Nathan of the United States District Court for the Southern District of New York rejected this argument. Judge Nathan did not rule out the possibility that posting something on Twitter grants other users the right to use that content for some purposes – such as re-tweeting – but she held that nothing in the terms of use conferred "a benefit on the world-at-large to remove content from Twitter and commercially distribute it."

Because of conflicting evidence, she left other issues for the jury to decide at trial, including whether the defendants had infringed Morel's copyright wilfully and the extent of Morel's damages. According to the evidence presented on the summary judgment motion, all three of the defendants initially attributed some of the photographs to the wrong person. Morel's lawyer contacted the Post and offered to give it permission to use the photographs if it corrected the attribution, but the Post claimed that it never received the letter or a number of subsequent communications. There was also evidence that the Post and Getty failed to take the photographs down when they received notice of the infringement. Morel contended that when AFP first downloaded his photographs, it knew it had no right to take them and was violating its own social media policies.

The Post settled with Morel before trial. The jury found that AFP and Getty's infringement of Morel's copyright was wilful, and awarded him US$1.2-million.

FAIR DEALING AND IMPLICATIONS OF THE MOREL CASE

The lessons from Morel are transferable to the Canadian context. The case suggests that social media terms of use and the way in which one uses the copyrighted content are important considerations in any case of alleged copyright infringement. Sharing content in a manner the service permits in its terms of use or implicitly encourages may be permissible, but taking content from social media and selling or licensing it to others without permission is problematic.

There are at least two ways to deal with this issue in Canada: obtaining permission or a licence from the copyright holder, and taking steps to ensure the use qualifies as "fair dealing," an exception to copyright infringement under the Canadian Copyright Act. Fair dealing allows the use of copyrighted content for specific protected purposes listed in the act. Protected purposes include news reporting, criticism or review, parody or satire, and education. For news reporting and criticism or review, a defendant must credit the source of the content and, if available, the creator as well. In practice, it is best to include all available information about the source and the creator of the content.

In order to be protected, use of the content must also qualify as fair. Although what is fair will depend on the circumstances of each case, there are a number of steps news organizations or others can take to protect themselves, including using alternative non-copyrighted content if available; providing a link back to the original work or the creator's website or Twitter account; using a screenshot to highlight the source and that it is someone else's content; and, where possible, using only an excerpt or shrunken version of the original work. In the case of news reporting, it is also important to consider the extent to which using the copyrighted content enhances or is relevant to the news report. Simply selling or licensing someone else's copyrighted content without permission is very unlikely to be considered fair.

SUGGESTIONS FOR HANDLING CONTENT FROM SOCIAL MEDIA

One of the problems the Morel defendants faced was that they did not initially credit Morel with all of the photographs, and the Post and Getty may have failed to take the photographs down when Morel first brought the infringement to their attention. While not addressed in the summary judgment decision, this may be a reason why the Post settled and did not rely on "fair use," the American equivalent of fair dealing.

The attribution problem appears to have arisen because some of Morel's photographs were "reposted" to a Twitter account belonging to another photographer, Lisandro Suero. AFP and Getty wrongly assumed that Suero – who claimed he had exclusive photographs of the earthquake – had taken the pictures, and they gave him credit. The Post republished the erroneous attribution when it licensed the photographs from Getty. As this shows, it is important to consider the surrounding circumstances to see if there is any reason to question whether content from social media – or even a wire service – is what it purports to be, or whether the source attribution is correct.

Morel also criticized both Getty and the Post for not responding to his requests to correct the attribution and take the photographs down. Companies using content from social media should consider developing systems to ensure that complaint letters reach the right recipient and that they have a reliable way of removing content if the decision is made to do so.

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