Tweet Me! - The Southern District of New York Answers Copyright Questions Raised By Twitter and Twitpic Use

by Sheppard Mullin Richter & Hampton LLP
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Social media has become a part of everyday life. As Shakespeare has written: "This news is not old enough, yet it is every day news." The minutiae of every moment is narrated through status updates. Digital photographs are taken and instantaneously posted minute-by-minute on the Internet for the world to see. This lightning fast use of social media raises new and different intellectual property challenges which have not been previously addressed by courts. On January 14, 2011, the Southern District of New York addressed a particularly interesting copyright question raised by the use of Twitpic – a service that allows users to post pictures to the Twitter microblogging and social networking website. Agence France Presse v. Morel, 2011 WL 147718 (S.D.N.Y. Jan. 14, 2011).

On January 12, 2010, Morel, a photographer who has worked in Haiti for over twenty-five years, took photographs in Port au Prince of the earthquake hit and its immediate aftermath. Although communication throughout Haiti was disrupted, Morel was able to access the internet, upload his photos on Twitpic, post on Twitter that he had “exclusive earthquake photos”, and link his Twitter page with his Twitpic page. Morel, 2011 WL 147718 at *1. Moments after posting Morel's photographs went viral. Lisandro Suero copied the photographs, posted them on his Twitpic page and tweeted that he had “exclusive photographs of the catastrophe for credit and copyright.” Id. at *2. Later that day, a photo editor from Agence France Presse, a French news agency that offers an international photo service to media worldwide, downloaded thirteen of Morel's photographs from Suero's Twitpic page, placed the photographs on Image Forum, attributed them to Suero and transmitted them to Getty Images, an image licensing company. After fencing through cease and desist letters, the dispute was brought before a federal court. In December 2010, Agence France Presse brought a declaratory judgment action, alleging that it did not infringe Morel's copyrights in his photographs based upon an express license. Morel counterclaimed, alleging, among other things, violations of the Copyright Act.[1] Agence FrancePresse moved to dismiss Morel's counterclaims. Agence France Presse's motion was denied with respect to Morel's copyright infringement claims.

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