Judge Rules Twitter Images Cannot Be Used Commercially

New submitter trekkie314 writes "Reuters reports that a Manhattan District Judge has ruled that AFP and the Washington Post infringed a photographer's copyright by re-using photos he posted on his Twitter account. The judge rejected AFP's claim that a Twitter post was equivalent to making the images available for anyone to use (drawing a distinction between allowing users to re-tweet within the social network and the commercial use of content). The judge also ruled against the photographer's request that he be compensated for each person that viewed the photos, ruling instead that damages would be granted once per infringing image only. This last point might have interesting implications in file-sharing cases — can it set a precedent against massive judgments against peer-to-peer file-sharers?"

Comments

Yay double standards

[Anonymous Coward]

If an individual were to tweet an image originally made available on a large corporation's website, you can bet the Judge would rule that damages would be granted per each viewing of it.

Re:Yay double standards

[Zordak]

If an individual were to tweet an image originally made available on a large corporation's website, you can bet the Judge would rule that damages would be granted per each viewing of it.

No they wouldn't. Statutory damages for copyrights are always awarded per infringed work. The only discretion for the fact finder is the amount, which can vary anywhere between $200 for innocent infringement to $150,000 for willful infringement. But it is always per work, which means that it doesn't matter if two people saw it or ten million. This is exactly what is happening in the RIAA file sharing cases, by the way. The damages are so large because there are lots of infringed works (e.g., if you shared 10 songs, damages could be up to $1.5 million).

If you want damages based on how many people saw the picture, you would have to prove those as actual damages, either by proving that there is a profit per view attributable to the infringer, or that there is a profit you lost per infringing view. That's a lot harder than just collecting statutory damages.

Perpetual license

[bondsbw]

The judge also ruled against the photographer's request that he be compensated for each person that viewed the photos, ruling instead that damages would be granted once per infringing image only.

Once damages are granted for an image, would this ruling indicate that the defendant would be able to continue infringement without ever paying again?

Re:Perpetual license

[Cyberax]

No, they would still need to acquire a license to this image. Damages only cover the past infringements.

Go Judge

[YodasEvilTwin]

This seems like a fair and informed judgment to me. I don't think the photographer could harmed more by each view, and the distinction between re-use on Twitter and re-use elsewhere is a nuance I wouldn't expect most judges to understand. Let's hope he gets some filesharing cases and tells the RIAA they're owed $0.99 per song and no more.

Once per infringing image

[girlinatrainingbra]

It's a bit ambiguous: does "once per infringing image" mean -- "once per image infringed", so that Agence-Presse-Francais and the Washington Post would only pay half of the cost each per each image infringed
-- "once per infringing use [posting or publishing, not per view] of image", so that whatever the "use cost" of the image is, the Post would have to pay full use cost, and AFP would also have to pay full use cost.

.
I can actually see the point and usefulness of "per view" of image, because I would guess that the contractual or negotiated "use cost" of the image would be different for different uses:

-- smaller payment for a small magazine with low distribution and readers
-- larger payment for a large magazine with large distribution and lots of readers
-- even larger payment for exclusive publication rights (which helps magazines sell even more copies, and also helps tabloid newspapers with paparazzi photos)
-- some other negotiated fee for web usage, with a sliding scale for number of impressions / views / click throughs.

So it would make sense that a web site that copied it and had a lot of page views of the image ought to pay more for infringing it than a web site that didn't. Unless of course, you bring in "statutory damages" which will not require bringing in any proof of dollar loss, merely prroof of copyright infringement.
Etrange. Tres etrange.

You're about 60 years too late

[Safety Cap]

Long ago, if you didn't post a copyright notice on your work, it would lose copyright protection. That was changed by our brave congresscritters (may Sonny Bono rot in hell!)

Now copyright applied the moment the work is fixed.

Unless someone posts it Public Domain or one of the CC flavors, it is Copyrighted, period.*

*US only. YMMV, especially if you're a foreigner, living in some country where everyone speaks backwards, wears funny clothes and eats smelly food. Also, the music! Don't get me started.

Re:You're about 60 years too late

[Anonymous Coward]

*US only. YMMV, especially if you're a foreigner, living in some country where everyone speaks backwards, wears funny clothes and eats smelly food. Also, the music! Don't get me started.

Actually...the Berne Convention is an international agreement that was lead to the US changing its laws, rather than a decision by any lawmakers in the US.

Re:You're about 60 years too late

[steelfood]

a foreigner, living in some country where everyone speaks backwards, wears funny clothes and eats smelly food. Also, the music! Don't get me started.

That's what happens when you don't have strong copyright controls. Especially the part about eating smelly food. Only with strong copyright controls will your food be completely bland and odorless.

Re:You're about 60 years too late

[akpoff]

The Berne Convention was written and first formally accepted in 1886...but not by the United States. The US steadfastly refused to adopt the convention because it would have required large changes to our copyright laws and acceptance of doctrines like author's moral rights for which we don't have analogous protections.

The US did eventually adopt the Berne Convention and did so in the only way permitted by our Constitution: Congress passed the Berne Convention Implementation Act of 1988. The US Senate then formally ratified the Berne Convention making the US a signatory to the treaty.

So yes, (some) US lawmakers did make a decision that resulted in changing our copyright laws.

The OP, however, is not correct in his oblique suggestion that Sonny Bono is in part or whole to blame. (Though I have no doubt Sonny Bono supported it.) Sonny Bono's name is sometimes attached to the Copyright Extension Act of 1998 but he did not vote for it. (Though he had sponsored similar legislation earlier.) He died nine months before it's passage. His wife Mary, who was elected to his Congressional seat after his death, was instrumental in getting it passed in his name.

Berne Convention
Copyright Extension Act

Re:You're about 60 years too late

[AmiMoJo]

Actually the initial resistance to Berne was mostly because the US infringed copyright on a massive commercial scale. Books published in Europe were being reproduced in the US royalty free and sold for a profit, and then later on the same thing happened with sound recordings and movies.

The US changed its copyright laws the moment it became economically beneficial to do so.

cannot ?!

[Barryke]

Can not be used commercially? Of course they can! They just need ask the owner first.. isn't this common sense in the US? In the Netherlands it is. News reporters contact people and ask for their consent before reusing the image they made and posted online.
.

Re:Missing the point.

[qubezz]

>> Why didn't the owners of AFP and The Post just pay him off?

AFP didn't just not pay him off, after the photographer's agent sent take-down notices to AFP, AFP sued him. Then they sent a message over the wire service to kill all of Morel's own images, but not the identical images that had been sent out initially under the false credit.

AFP deserves even more of a serious courtroom smackdown equivalent

Re:Missing the point.

[sconeu]

Aren't AFP the guys who want Google to pay them for just LINKING to their content?