Agence France-Presse: "All Your Twitpics Are Belong to Us"

The prominent France-based news agency Agence France-Presse is claiming in court that by uploading photos to Twitter and Twitpic, a photographer has in effect granted a license to anyone who would like to use those photos.

In a court case currently before the Southern District of New York, AFP claims that Twitter’s recent clarification of its trademark rights gives anyone the right to use material that is published to the microblogging service. If the rationale sounds counter-intuitive to you, you are not alone.

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Daniel Morel, a photographer who worked in Haiti, posted some of his photos to Twitter via the photo service Twitpic. Another Twitter user, Lisandro Suero, user copied the photos and offered them for use. AFP used the photos and furthermore used the photography licensing firm Getty Images to resell them. AFP and Suero were credited for the images in use by a number of other news organizations.

According to the Eric Goldman, associate professor of law at Santa Clara University, on his Technology and Marketing Law Blog, after Morel began sending cease-and-desist letters, AFP filed a “declaratory judgment action ” against the photographer, “asserting commercial defamation and seeking a declaration of non-infringement.” The basis? The Twitter terms of service give AFP the right to publish photographs it finds there!

Part of this TOS says that Twitter can share material with its partners. AFP is attempting to interpret this as anyone who uses Twitter is a partner and can use the material. That does not seem to be even the spirit of the statement, much less the letter. AFP’s case seems in part a misunderstanding of the notion of social media. If I retweet a photo from one Twitter user to my Twitter account, that is far from the same thing as a for-profit media company taking the photo off the ecosystem and thereupon claiming ownership of it.

Twitter’s clarification as the ability of unrelated third-parties to help themselves to users’ material is pretty clear.

Don’t:

• Use screenshots of other people’s profiles or Tweets without their permission . . .
• Print Tweets without permission from the author.

“No one, said Goldman, “would reasonably think that content shared within the Twitter ecosystem is fair game, particularly for use outside the Twitter ecosystem.”

This act and the subsequent back-and-forth lawsuits illustrate the disconnect between social media users and their expectations with those outside of that system. The ethos and mores of teh two groups continue to clash and will for some time.

For a much more detailed discussion of the legal issues surrounding this case, see Agence France-Presse Claims Twitter’s Terms of Use Authorize Its Use of Photographs Posted to TwitPic — Agence France-Presse v. Morel and Twitter Clarifies Usage Rules, but AFP Still Claims Unbridled Right to Use Content Posted to “Twitter/TwitPic” both from the Technology and Marketing Law Blog

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