Jul 8, 2015

Photographs and the Law - Re-publish, retweet, regret?

A California photographer, Dennis Flaherty, is suing beverage company Big Red for using one of his photographs on their social media account for promotional purposes. This form of infringement is not uncommon but in this case the plaintiff is also suing not only the company and everyone associated with it but also any social media users that have used his photo on social media, re-tweeting it or pinning the promotion.

Background

The Plaintiff, Mr Dennis Flaherty, is an award winning professional photographer and has valid and registered copyright (unlike the UK it is possible to register copyright in the US) to the photograph in question. The Defendant is North American Beverages LLC, a Texas based company which owns several companies including Big Red, Inc.  Mr Flaherty sought statutory damages for copyright infringement.

The photograph is of Fort Alamo at night and has been used because of its links to Texas where the Defendant is based and also because at the time the promotion was published they were celebrating the 179th Anniversary of the Battle of Alamo.

Mr Flaherty claims Big Red have infringed his copyright and exclusive rights to this picture alleging that they are reusing his photo or one that is nearly identical to it as there are some small alterations such as a flagpole being removed and Big Red's trademarked logo featuring in the picture.

Mr Flaherty's original complaint included three counts:

Count one is in relation to Big Red, Inc and North American Beverages LLC for Direct Copyrights Infringement under the Violation of CopyRights Act, 17 U.S.C. Within his complaint Mr Flaherty states that's he believes that the company has had access to the photograph through his website and didn't have any authorisation or rights to use it. Mr Flaherty cites Phillip Morris USA Inc v Lee 547 F.Supp.2d 685, 693 (W.D.Tex.2008) when claiming that the defendant has acted in reckless disregard of his copyrights which will be seen to be wilful conduct.

Count two is in relation to the John Does who manage Big Red social media accounts for vicarious copyright infringements as Mr Flaherty states that the John Does have received 'a direct financial benefit' from the infringed photograph although he isn't yet aware of the names of the defendants. A key element to this count is that he believes his photograph has been used because it conveys 'a meaning and direct relationship of where the defendants business is located' and a financial benefit has been made through the 'drawing' of business from the photograph.

Count three, and the count that has made this case so interesting, Mr Flaherty is also claiming  contributory infringement to any one that has re-tweeted the photo as he claims that under Twitter's terms and conditions, they all 'stood in the shoes of the Plaintiff and licensed the image to Twitter."  However, the Twitter terms also clearly states, "This license is you authorizing us to make your Tweets on the Twitter Services available to the rest of the world and to let others do the same." The main flaw with this count is that Mr Flaherty claims that the Defendants should have known that they should have known of their infringement.

Implications

The outcome of this case will be high significant to any social media user in the US because as soon as the floodgates open to establish a court dealing with social media wrong doings will that lead to the downturn of users and posts for fear of implicating themselves in copyright infringement cases.  However, is very unlikely that a plaintiff will be awarded damages from any social media user as proving that contributory infringement was intentional would be nigh on impossible.

Posted by: in: Case Law, Copyright, Digital/Tech, News

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