Guest post by John H. Rees, Attorney, Callister Nebeker & McCullough
Facebook™’s terms of service give Facebook the unlimited right to use any photos, videos, and other intellectual property content posted on the site. Facebook acknowledges that ownership of the content is retained by the user, but the ownership rights are subject to the license granted by the user to Facebook. Twitter™ similarly acknowledges that ownership of content remains with the user, but also claims an unlimited license to use the content.
It’s quite tempting to use content posted by friends and others on social media sites. Whether the use is personal or commercial, or for public or private use, some content is simply very good, and users may want to use the content for a variety of purposes. The rights granted to Facebook, Twitter, and other social media sites are very broad, and sharing takes place freely, but the sharing rights are not unlimited.
In a case decided earlier this year in the United States District Court of the Southern District of New York, the court decided what rights third parties had to photos posted on Twitter. Daniel Morel, a photojournalist, was in Haiti at the time of the devastating earthquake in January 2010. He took several photographs of the scene after the earthquake, and posted them on Twitter through his TwitPic account. Shortly after Morel posted his photos on Twitter, they were reposted to the account of Lisandro Suero. Through a series of events, some of the photos were downloaded by Agence France Presse (“AFP”), a French news agency that maintains an online photo database, and some of the photos were licensed by AFP to Getty Images through a reciprocal license agreement to display images.
AFP brought the action against Morel seeking a declaration that its acts did not constitute copyright infringement. Morel filed a counterclaim against AFP, Getty Images, and the Washington Post seeking a determination that they each willfully infringed his copyright in the photos.
One of the arguments made by AFP was that it was not liable for copyright infringement, because Morel granted it a license to use the photos by posting the photos on Twitter. AFP acknowledged that the act of posting photos online did not eliminate Morel’s copyright in the photos, but argued that it had a license to use the photos through the Twitter terms of service. Alternatively, AFP argued it was a third-party beneficiary of the Twitter terms of service. The court was not persuaded by either of these arguments.
The court acknowledged that Twitter encouraged and permitted broad reuse of content, but also found that Twitter did not grant an express license to AFP to use the photos for purposes other than reposting. The Twitter terms of service provide that the user, by posting content, grants to Twitter a worldwide, non-exclusive, royalty-free license to use content in any and all media or distribution methods. The terms of service further provide that Twitter may make content available to other companies, organizations, or individuals who partner with Twitter. But the court found that the terms of service did not give AFP the rights of use it claimed in the litigation.
Photos and other content on social media sites generally may be reposted. The current Twitter terms of service provide that “this license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.” Facebook’s terms of service are similar. However, the rights granted are not unlimited, and specifically do not include the right to download and license photos posted on Twitter or Facebook to third parties.
There are two potential ways to have permission to repost or otherwise use a photo or other content posted on a social media site. One is to contact the owner of the copyright and obtain permission directly from the owner. The second way is to fall within the terms of the terms of service of the social media site. Before relying on the site’s terms of service, however, it should be clear that the use falls within the scope of the license granted in the terms of service, and that the person using the content is an intended licensee or beneficiary under the terms of service.
As Agence France Presse learned the hard way, using without permission another’s content posted on a social media site is still copyright infringement.
This article was first published at Consider The Law (and don’t worry, we have permission from the author to publish this content).
John Rees is a business lawyer with the law firm of Callister Nebeker & McCullough who helps clients find solutions to their business legal needs, particularly in a complex legal and business environment. He focuses on corporate and intellectual property issues, particularly relating to licensing and doing business on the internet.
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