By: Sydney Johnson
Every day, hundreds of thousands of creative works are posted to social media. A copyright generates with the post, but questions of ownership are often ignored on social media platforms. This places a burden on the creator to police the usage of their work, and this policing burden deters innovation.
Daniel Morel, a photographer, was present during Haiti’s 2010 earthquake. He posted amazing first-hand-account photos to Twitpic, a third-party social media application of Twitter.[i] The photos went viral—but not in the way he had intended. Suero, another Twitpic and Twitter user, copied the photographs and posted them as his own.[ii] Morel’s photos traveled from an online photo database (AFP), to Getty Images, to news agencies around the world.[iii] Credit for the photographs read “AFP/Getty/Lisando Suero”—not Morel.[iv]
The terms of service for Twitpic allow Twitpic to use or distribute the photos, so long as it gives copyright ownership to the respective owner.[v] However, AFP, Getty, and Suero failed to acknowledge the rightful owner of the photograph. Morel contacted Getty and asserted exclusive rights to the photographs.[vi] However, both AFP and Getty failed to act in accordance with the photo “kill” that ordered them to take down the photograph from all websites and newspapers and continued to license Morel’s photographs, even after Morel applied for expedited copyright registration.[vii] While he raced through the red tape, the companies profited from the use of his photographs.[viii]
Morel alleged that the wrongful use of his photographs “impaired [his] ability to license them, caused losses in licensing revenues, and diluted the value of Morel’s intellectual property.”[ix] AFP, Getty, and Suero claimed that “(1) they had an express license to use Morel’s images, or, alternatively, (2) they were third-party beneficiaries of a license agreement between Morel and Twitter.”[x]
The licensing defense centered around the terms of service from Twitter and Twitpic.[xi] AFP, Getty, and Suero use the terms of service language that Twitter “encourage[s] and permit[s] broad re-use of content.”[xii] However, the express language only grants licensing privileges to Twitter, its partners, Twitpic.com, or affiliated sites.[xiii]
Morel also alleged falsification of the copyright management information (“CMI”), which contains identifying information about the work and its copyright owner, because of the credit lines and evidence that the defendants knew the images belonged to Morel.[xiv] The court decided that “[t]hese allegations sufficiently plead knowledge and intent.”[xv]
A jury found that the AFP, Getty, and Suero willfully infringed on the photographs’ copyright.[xvi] They awarded Morel $150,000 for each of the eight infringed photographs.[xvii]
The Morel case demonstrates how quickly intellectual property can be stolen from social media for financial benefits. Particularly frightening is that this theft can occur without the knowledge of the copyright owner or the purchaser of the photographs.[xviii] It shows just how infringement can spread like wildfire when social media is involved. A photographer’s property was stolen and sold by companies for a quick buck. But what about those who aren’t as lucky (or diligent) as Morel? What protections do they have?
To solve this problem, the burden of diligence needs to shift. There are two forums that could bring about this necessary shift: the social media platforms or the legislature. The first potential solution would require social media platforms to adopt inexpensive licensing options that users could access within the application. One example of such a platform is Lobster, which offers images in exchange for inexpensive licenses.[xix]
The legislature could also shift the burden to update current laws and regulations surrounding intellectual property and online media. The Digital Millennium Copyright Act (“DMCA”), which set basic standards for copyright law in the increasingly technological 21st century, is in dire need of an update—technology has grown exponentially over the past 20 years. To put it into perspective, the DMCA was written when the internet was still using dial-up speed.[xx] The current state of the DMCA puts too much of a burden on the copyright owners. This deters individuals from creating new works, and therefore goes directly against the purpose of the DMCA, and further, the Copyright Act.[xxi] Federal District Court Judge Katherine Forrest said it best:
When the Copyright Act was amended in 1976, the words ‘tweet,’ ‘viral,’ and ‘embed’ invoked thoughts of a bird, a disease, and a reporter. Decades later, these same terms have taken on new meanings as the centerpieces of an interconnected world wide web in which images are shared with dizzying speed over the course of any given news day. That technology and terminology change means that, from time to time, questions of copyright law will not be altogether clear.[xxii]
Social media has offered the public many benefits through the ability to connect with people around the world and share groundbreaking ideas and works. However, the freedom to make information freely accessible comes at a cost, and people often do not realize what they are giving up when they post their work on social media. From hidden language in the platform’s terms of service, to internet trolls, to companies trying to make fast money, social media is a minefield for intellectual property infringement. This calls for the law to protect social media users and their original works so that creators do not fall victim to the same theft that Morel experienced.
Notes:
[i] Bilal Kaiser, Social Media’s New Intellectual Property Challenges, Legal Zoom (last visited Feb. 7, 2019), https://www.legalzoom.com/articles/social-medias-new-intellectual-property-challenges; Agence France Presse v. Morel, 769 F.Supp.29 295, 298 (S.D.N.Y. 2011).
[ii] Id. at 299.
[iii] Id.; Kaiser supra note i.
[iv] Id.
[v] Id. at 298-99.
[vi] Id. at 300.
[vii] Id. at 301.
[viii] Id.
[ix] Id.
[x] Id. at 302.
[xi] Id. at 303.
[xii] Id.
[xiii] Id.
[xiv] Id. at 305.
[xv] Id.
[xvi] Agence France Presse v. Morel, 2014 WL 3963124 1 (S.D.N.Y. 2014).
[xvii] Susan Ross, Social Media, Copyright & Photographs, Norton Rose Fulbright (Apr. 27, 2018), https://www.socialmedialawbulletin.com/2018/04/social-media-copyright-photographs/ (This high award is often not awarded).
[xviii] Agence France Presse v. Morel, 769 F.Supp.2d 295 (S.D.N.Y. 2011).
[xix] Alice Gatinol, The Conflict Between Social Media and Copyright, Managing Intellectual Property (Jul. 20, 2016), http://www.managingip.com/Article/3572064/The-conflict-between-social-media-and-copyright.html.
[xx] Allen Abbott et al, Creativity and Innovation Unchained: Why Copyright Law Must be Updated for the Digital Age by Simplifying It, Regulatory Transparency Project (Oct. 27, 2017), https://regproject.org/paper/creativity-innovation-unchained-copyright-law-must-updated-digital-age-simplifying/.
[xxi] Id.
[xxii] Goldman v. Breitbart News Network, LLC, 302 F.Supp.3d 585 (S.D.N.Y. 2018).