Photographer Daniel Morel was awarded summary judgment last week in New York in his ongoing copyright infringement claim against Agence France Presse, Getty Images and the Washington Post. AFP and the Washington Post will have to pay him damages after using his tweeted photographs of the Haiti earthquake three years ago without a licence. Whether Getty is also liable remains to be determined. AFP and the Washington Post (and Getty, if ultimately found liable) might have to pay statutory damages of up to $1.2m, but not the tens of hundreds of millions of dollars Morel argued he was entitled to claim.
The judge’s key finding for people tweeting their photographs was that Twitter’s terms of service (which are subject to California law) do not give news agencies or anyone else an automatic licence to publish tweeted photos. Twitter could have licensed Morel’s pictures to AFP if they’d wanted to, without payment to Morel, but that hadn’t happened. AFP could not rely on Twitter’s terms of service in the absence of such a licence.
So far so good. But have the news media got the message?
It appears the answer to this question may be yes, but only up to a point.
An article in The Guardian looked at this issue in the context of the helicopter crash in London last week. Eye witness photos appeared on Twitter first and were then picked up very rapidly by the media. Were the media aware of the rules of engagement as confirmed in the Morel decision?
The Guardian itself appears to be: “The Guardian, which also publishes MediaGuardian, has a policy of publishing with permission and says where it inadvertently publishes without permission it will seek to rectify the matter as quickly as possible and pay for usage.” The Guardian, in other words, doesn’t deliberately publish people’s photos without permission.
But other newspapers, whilst acknowledging that pictures on Twitter are subject to copyright, may sometimes ignore one of the key points about copyright – the requirement to get permission before you use a work.
A newspaper which published an eye witness’s tweeted photograph of the aftermath of the crash is said in the Guardian article to have confirmed that “in the heat of the moment, the paper could not contact [the tweeter] about its splash, but if he, or anyone else, contacts them regarding payment, they will oblige.” The newspaper’s picture desk is quoted as saying “All the information about the source of the photo is entered into the database and remains in our library. We’ve always been of the view whoever took the photo owns the copyright, and if they want payment, there is no question they will be paid.”
The difficulty with this is that eye witness photos will often be “heat of the moment” material. If a newspaper doesn’t get permission before publication it will almost always infringe copyright – being willing to negotiate a fee after the event isn’t a defence to a legal claim.
In most cases the media will get away with this. Perhaps the tweeter isn’t interested in being paid, or the sums involved are too small to make legal action likely. But a policy of publish now, negotiate later cannot be defended from a legal point of view. Copyright isn’t just a right to be paid, it’s a right to authorise publication.
The lesson for professional photographers is clear. Don’t rely on the Morel decision. If you tweet photographs you risk them being published without your permission, and if the photograph is a valuable newsworthy image you will lose out if this happens because your negotiating position will be undermined. Unless that is, like Morel, you are prepared to play hardball.