v. Agence France Presse v. MorelIn Agence France Presse v. Morel,^2772 photographer Daniel Morel took photos of Port au
Prince, Haiti, shortly after an earthquake devastated the city and posted the photos on TwitPic.
There were no copyright notices on the images themselves, but Morel’s TwitPic page included
the attributions “Morel” and “by photomorel” next to the images. A few minutes after Morel
posted his photos, Lisandro Suero copied the photos, posted them on his TwitPic page, and
tweeted that he had “exclusive photographs of the catastrophe for credit and copyright.” Suero
did not attribute the photos to Morel. Agence France Presse (AFP) downloaded 13 of Morel’s
photos from Suero’s TwitPic page (not knowing that Suero had copied them from Morel), placed
them on an image forum and transmitted them to Getty, an image licensing company. Morel’s
photos were labeled with the credit line “AFP/Getty/Lisandro Suero,” designating AFP and
Getty as the licensing agents and Suero as photographer. Getty then licensed Morel’s photos to
numerous third party news agencies, including CBS and CNN. After learning that the photos did
not belong to Suero, AFP issued a wire instruction to change the photographer credit from Suero
to Morel. However, Getty continued to sell licenses to charities, relief organizations, and new
outlets that variously credited AFP, Suero, or Morel as the photographer.^2773
Shortly thereafter, Corbis, which acted as Morel’s worldwide licensing agent emailed
Getty asserting exclusive rights to Morel’s photos. That afternoon, AFP issued a “kill” for 8
images listing Morel as photographer, but the “kill” did not include identical images credited to
Suero or images never credited to Morel. Morel and Corbis alleged that AFP and Getty failed to
observe or enforce the credit change instruction or the “kill,” continued to license and sell
Morel’s photos, and derived a direct financial benefit as a result. AFP filed a suit, seeking a
declaratory judgment that AFP did not infringe Morel’s copyrights in certain photos. Morel
counterclaimed against AFP and Getty, alleging that they had willfully infringed his copyrights
and that AFP and Getty were secondarily liable for the infringement of others and had violated
the CMI provisions of the DMCA.^2774
After discovery, upon cross motions for summary judgment, the court determined that
both AFP and Getty were direct infringers for the distribution of unauthorized copies of Morel’s
photos. The court rejected a defense asserted by AFP that it was licensed to distribute Morel’s
photos as a third party beneficiary of Twitter’s Terms of Use (TOU) to which Morel was subject
when he uploaded his photos onto TwitPics.^2775 Specifically, the Twitter TOS provided: “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). ... You agree that this license includes the
right for Twitter to make such Content available to other companies, organizations or individuals
(^2772) 769 F. Supp. 2d 295 (S.D.N.Y. 2011).
(^2773) Id. at 298-300.
(^2774) Id. at 298, 300-301.
(^2775) Agence France Presse v. Morel, 934 F. Supp. 2d 547, 559-60, 564 & 583-84 (S.D.N.Y. 2013).