A U.S. District Judge has ruled that the AFP and Washington Post infringed on copyright by posting photographer Daniel Morel’s photos of earthquake damage in Haiti.
The photos were posted to Twitter, from which the AFP submitted them to Getty. WaPo found the images on Getty and posted them on its website. The ruling explains, over the course of about 60 pages, that just because the images were posted to Twitter doesn’t mean they were fair game for reposting elsewhere. The AFP argued that Twitter’s terms of service, which allows the site to “reproduce” users’ images, gave it the right to do the same. The judge said no.
Here’s the thing: If this same situation occurred today, there would be a legal way to repost Morel’s photos without his direct permission. All The Washington Post would have to do is use Twitter’s embed function.
Twitter tells BuzzFeed that embedded tweets — that is, tweets that are embedded into the site using Twitter’s official embed tool — fall under Twitter’s reposting rights, as outlined in its terms of service. So posting an image like this, which I tweeted earlier, is fine:
But posting the same image like this, without permission, wouldn’t be:
It’s an incredibly subtle difference, but an important one. Twitter’s TOS explains:
You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
If the photo is embedded, it falls under Twitter’s right to “use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute” the photo (users still own the copyright to the photo, however). It’s still Twitter doing the reproduction, technically — in a way, the photo is still on Twitter. But if you take the image out of the embed frame, the TOS no longer applies.
FWD’s resident lawyer Michael Phillips guesses the rationale: “In defense of the Embed Tool, an EMBED TOOL Tweeted Photo has to be in some sense not the photograph, but a representation of the underlying photograph as it looks on Twitter. This would permit the embed-tooling while not taking the image as a stand-alone.”
(Twitter user tone_def points to a past case in which Google successfully defended itself against infringement claims on the basis that it was re-displaying images from other sites by embedding them with HTML, or “hotlinking,” rather than rehosting them itself.)
Using embedded tweets wouldn’t have changed the AFP’s situation, since one of its reporters submitted the photo to Getty — you can’t submit a Twitter embed to Getty. And it wouldn’t change the situation for print products, either.
But for The Washington Post, and for BuzzFeed, it seems like it might leave open a pretty large loophole. At least, until someone tries to litigate it out of existence.
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