Following in the wake of furore concerning proposed changes to Instagram's terms of service that seemingly would have allowed commercial uses of user's photographs without any compensation to them, a US court has issued a decision about the rights of third parties to use online content under the terms of service of another popular social media site, in this case Twitter. This case provides further comfort to the users of social media sites that they retain at least some control over content that they post online.

The case concerned the use by Agence France Presse (AFP), Getty Images Inc (Getty) and the Washington Post (the Post) of photographs depicting the aftermath of the January 2010 Haiti earthquake. The photographs were taken by a photographer, Daniel Morel, and posted by him to his Twitter account via TwitPic (a companion site to Twitter). They were then published by each of AFP, Getty and the Post, without any express licence to do so having been sought from, or granted by, Mr Morel.

The decision of the US District Court (Southern District of New York) was made at an early stage in proceedings and did not reach conclusions on all of the arguments put forward by the parties. The Court did, however, decide that AFP and the Post were liable for infringing Mr Morel's copyright in the photographs and granted summary judgment in favour of Mr Morel on this issue. (Getty raised additional defences that will be considered in a further hearing, alongside the question of the amount of damages to which Mr Morel is entitled for the copyright infringement.)

The defence put forward by AFP was that its actions did not infringe Mr Morel's copyright in the photographs because it had been granted a licence authorising use of the photographs. AFP argued that the licence arose because:

• in posting the photographs to TwitPic, Mr Morel granted a licence of those photographs under the provisions of Twitter's terms of service (which terms apply to pictures uploaded to Twitter via TwitPic)
• AFP was a third party beneficiary of the contract created between Twitter and Mr Morel on those terms
• therefore, the licence granted by Mr Morel extended to AFP as a licensee.

The Court rejected that argument, finding that:

• under US law, a person will only have the benefit of a contract to which it is not a party if the terms clearly evidence an intent to benefit that person, which may be shown if the contract necessarily requires that the person be benefited
• the Twitter terms of service reflected the parties' intention that a licence to content uploaded by the user be granted to Twitter's partners and sub-licensees, but not to other third parties
• although there was some broad language used in the terms of service that could have suggested that a broad licence was intended (for example, 'This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.'), other language was much narrower (for example, 'You retain your rights to any Content you submit, post or display'), so reading the terms as a whole meant that there could be no clear intent, or necessary requirement, to imply the broad licence argued for by AFP
• even if the terms of service did grant persons other than Twitter and its partners some form of licence to use content posted to Twitter (for example, a right to re-tweet others' tweets), this did not mean that the licence was broad enough to allow third parties to use photographs out of the context of a tweet and for commercial gain.

This decision demonstrates that material posted to Twitter cannot necessarily be reproduced and used by third parties for any reason. The Court did not have to consider the rights of Twitter itself to use content on Twitter or to grant licences to others to do so. These rights are likely to be broader than those of third parties like AFP who do not have an arrangement with Twitter. However, any acts by Twitter seeking to exercise these rights in a manner that is perceived as disregarding the rights of its users may spark further legal action in the future about the scope of the licences granted by users under the terms of service.