Court Holds That Twitter's Terms Of Service Did Not Create A Third Party Beneficiary License

This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.

Judge Alison J. Nathan of the United States District Court for the Southern District of New York recently issued an important decision involving copyright infringement and the availability of content on social media sites like Twitter. In Agence France Presse v. Morel, the court granted partial summary judgment to defendant and counterclaim plaintiff Daniel Morel, finding that the Agence France Presse ("AFP") and the Washington Post (the "Post") had infringed his copyrights in photographs he had taken after the 2010 earthquake in Haiti.

In January 2010, Morel was in Haiti when the devastating earthquake struck. The photojournalist captured images of the aftermath and posted them to Twitter through his TwitPic account. Another Twitter user – Lisandro Suero – reposted the pictures claiming that he had exclusive photographs of the earthquake. AFP obtained the photographs from Twitter, credited them to Suero, and transmitted them through its wires and to its partner, Getty Images ("Getty"). The Post obtained some of Morel's images from Getty and published them on its website. Sometime in the immediate aftermath, efforts were made to correct the caption of the photos to credit Morel, and ultimately, to take down the pictures once it was apparent that Morel and his photo licensing agency were claiming exclusive rights over the images.

The dispute, however, didn't end there. AFP moved first by filing a complaint against Morel for commercial defamation and seeking a declaration that AFP had not infringed Morel's copyrights in the photographs at issue. AFP based its defamation claim on statements purportedly made by Morel and his attorney to third parties that AFP did not have a license to distribute Morel's photographs and that it had infringed his copyrights. Morel filed a counterclaim against AFP, Getty and the Post (the "Counterclaim Defendants"), alleging that they had willfully infringed his copyrights. He also claimed that AFP and Getty were secondarily liable for the infringement of others who had posted the photos and that they had violated the Digital Millennium Copyright Act ("DMCA"). Eventually, both sides filed summary judgment motions.

On summary judgment, the Counterclaim Defendants did not deny that they had copied, distributed, and displayed Morel's images. Rather, their motions rested on several affirmative defenses. Of particular interest was...