When you take a photo and post it to Twitter, is it still yours?
The wire service Agence France-Presse (AFP) tried to argue that all photos posted to Twitter were fair game for any other media outlet or user to take and use for their own purposes, due to a very open reading of the Twitter terms of service. A judge recently disagreed in one of the few legal opinions so far to expressly take a look at user copyrights regarding social media service’s terms of service.
Most observers expected AFP’s argument to fail – even Twitter said its users retained copyright when posting photos. But the case, AFP v. Morel, is still important as one of the first judgements to expressly set guidelines for what is and isn’t allowed, said Kraig Baker. Baker is a digital media attorney and partner at Davis Wright Tremaine, and teaches law and policy classes in the MCDM program.
“It provides us our first framework for how you’re going to pull down photos from Twitter, and, by extension, Facebook,” Baker said. “Essentially, there’s question about, ‘What do all these terms of service mean?’ And I think that’s why this case resonates more than other cases, and why it might be more important than other cases.”
The background of the case is fairly complicated (Ars Technica has a more detailed background here). It started when the photojournalist Daniel Morel took some photos in the aftermath of the 2010 Haiti earthquake and posted them to Twitter. Another Twitter user re-posted the photos, claiming ownership, and AFP published them on its wire service. Once it became clear Morel owned the photos, there was some attempt to remove the photos from the wire service, but several outlets had already published the photos.
When Morel claimed copyright infrigement, AFP filed suit asking for a declaration that the photos were not protected by copyright. Since Twitter’s terms of service grant the platform a broad license for posted content (allowing other users to re-tweet content, for example), AFP argued the terms also gave third-parties, such as media outlets, rights to the content as well.
That argument was struck down (see the original court document here), but it’s only the latest news story regarding the complicated terms of services regarding photos and other content shared online.
Last month, Instagram got into hot water for proposing terms of service which seemed to give Instagram the right to sell users’ photos for use in advertising. The platform removed the most offending language, but new terms on Instagram went into effect last week making it easier for the company to share information with Facebook, which bought the service in September 2012.
MCDM faculty member Kathy Gill has put together a summary of terms of service for the leading photo sharing websites. It’s safe to say most users gloss over the dense legal language in the terms of service agreements for services they use, if they read them at all. But as these stories show, the terms of service can have huge implications for users.
“I would love it if this meant people were more sensitive,” Baker said. “There’s always a conflict between writing these simply enough for users, but complicated enough that it doesn’t leave the platform open to litigation.
“I think it’s a conundrum, because it’s something people should be concerned about. I think they are if you ask them directly, but if you ask what they’re doing about it, they don’t know.”