Dennis Flaherty, an American photographer is suing the beverage manufacturer Big Red Inc. for using his copyrighted photograph of Fort Alamo at night, in a social media marketing campaign. Well, this doesn’t seem out place, right? Companies making unauthorized use of a copyrighted work should be held responsible, and in many cases they are. But what if I were to say that Mr. Flaherty is not just suing Big Red, its employees and affiliates but also every other person who shared and/or re-tweeted the photograph?
So, before we get into the details of this complaint, which may also seem a bit of a stretch, let’s get to know the parties and the main issue. Mr. Flaherty is a California-based, award-winning photographer. The Defendants in the case are Big Red Inc(‘Big Red’ for brevity)., North American Beverages, LLC (‘NAB’ for brevity) and Does-1 to 5. Now, it makes complete sense that Mr. Flaherty would go after Big Red and NAB, which is owned 100% by Big Red. It also adds up that he would sue ‘Does 1-5’ some of them being the employees, agents or other affiliates of Big Red. But the complaint takes an interesting turn where it states that some of these unnamed Defendants are the “registrants, owners, operators, and/or end users of the websites, blogs, domains, and/or social media accounts related thereto (or “Websites”), namely: https://twitter.com/drinkbigred; https://www.facebook.com/BigRed.“
The copyrighted work in question is a photograph of the historical monument, Fort Alamo, which is a significant part of Texan history. The photograph of the Fort at night had been copyrighted by the plaintiff in 2011. According to the complaint, Big Red had used a copy which was substantially or strikingly similar to the original for a social media marketing campaign, commemorating the 179th anniversary of the Battle of the Alamo. They had also used a watermark of their trademark/logo on the photograph for such promotion.
The Plaintiff therefore is suing the Defendants firstly for direct infringement, under the Copyright Act 17 U.S.C. §§106, 115, 504, for intentionally “uploading, posting “tweeting”, “pinning” ”, the photograph on its website without permission. Secondly, for vicarious infringement as the defendant had total control and supervision over the infringing acts and had commercially used the photograph, leading to obvious financial returns. The third and the most significant part of the complaint is the claim of “contributory infringement.” According to the Plaintiff the Defendants had contributed to the direct infringement by others, by distributing the photograph to Third Parties, which was further distributed and shared by them. He also claimed that by posting the picture on Twitter, the Defendants had licensed the picture to Twitter, as per the Terms of Service which states “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).Tip: 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 Plaintiff also considers such Third parties responsible for direct infringement that had shared or re-tweeted the photograph.
The idea of going after every person who may have re-tweeted or shared an infringing work seems like a lot of work. How many times do we think about the nature of information that we post on social media? Do we sit down and ponder about the legal implications of our “tweets”? The answer is a definite ‘no’. The case is not just interesting but could have serious ramifications if Mr. Flaherty were to have his way.