Summary
This post examines the legal action by photographer Dennis Flaherty against Big Red Inc for using his copyrighted Fort Alamo photograph in a social media campaign without permission. Notably, the case extends liability not only to Big Red and its affiliates but also to individuals who re-tweeted or shared the image online, raising questions about contributory infringement. The complaint cites direct, vicarious, and contributory infringement under US copyright law, referencing the terms of service on platforms like Twitter. This case highlights the complexities and potential consequences of sharing copyrighted works on social media. The outcome could set a significant precedent for online copyright enforcement.
Dennis Flaherty, an American photographer, has filed suit against beverage manufacturer Big Red Inc. for allegedly using his copyrighted photograph of Fort Alamo at night in a social media marketing campaign. The complaint raises a question extending well beyond the principal defendants: Flaherty has named not only Big Red, its employees and affiliates, but also every person who shared or re-tweeted the photograph on social media.
Parties and the Copyrighted Work
The plaintiff, Flaherty, is a California-based photographer. The defendants are Big Red Inc. (referred to as “Big Red”), North American Beverages, LLC (“NAB”) — a wholly owned subsidiary of Big Red — and unnamed persons designated Does-1 to 5. The complaint describes some of those unnamed defendants as registrants, owners, operators and/or end users of websites, blogs, domains, and/or social media accounts related thereto, namely the Twitter and Facebook accounts operated under the Big Red brand.
The copyrighted work is a photograph of Fort Alamo, the historical monument that is a significant part of Texan history. Flaherty had registered the copyright in this photograph in 2011. According to the complaint, Big Red used a copy substantially or strikingly similar to the original for a social media marketing campaign commemorating the 179th anniversary of the Battle of the Alamo, and affixed its trademark on the photograph for that promotion.
Claims in the Complaint
The plaintiff advances three principal claims.
Direct infringement: Under the Copyright Act 17 U.S.C. §§ 106, 115, 504, Flaherty alleges that the defendants intentionally uploaded, posted, “tweeted” and “pinned” the photograph on their websites without permission.
Vicarious infringement: Flaherty argues that Big Red exercised total control and supervision over the infringing acts and derived commercial benefit from the photograph, giving rise to vicarious liability.
Contributory infringement: The most significant aspect of the complaint is the allegation that the defendants contributed to direct infringement by others by distributing the photograph to third parties, who then further shared it. Flaherty contends that by posting the picture on Twitter, the defendants licensed the photograph to Twitter under its Terms of Service, which state:
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).
On the basis of that provision, the plaintiff treats each third party who shared or re-tweeted the photograph as a direct infringer.
Significance
The attempt to hold individual social media users liable for re-tweeting content that was itself posted in infringement raises broad questions about online copyright liability. The case highlights how infrequently users consider the legal implications of sharing content on social media, and could have serious ramifications for how contributory infringement is assessed in the context of online sharing platforms if the plaintiff were to prevail.
Disclaimer
This article is for general information and does not constitute legal advice. Readers should consult a qualified attorney before acting on any matter discussed here.