This time, the culprit is Magic Pony Technology, a third-party photo algorithm company acquired by Twitter. One part of their algorithm focuses on “saliency” – i.e., certain photos on Twitter might be selected for cropping, enhancement, or alteration. If other users post these photos without permission, Morton argues that the photos become unauthorized derivative works.
What are derivative works? And what makes them authorized or unauthorized?
Derivative works exist under part of copyright law commonly known as the “adaptation right.” They contain the whole of an already copyrighted work and fresh elements of authorship, which allow it to be copyrighted anew.
- Movies based on books or plays
- Translations of novels
- Artwork in one medium based on artwork in another medium (i.e. a watercolor inspired by a sculpture)
- Fictional stories based on the documents and events of a person’s life
- Compilations – music, stories, photos, and reviews, to name a few
- Revisions of already published works, like a novel or even a website
In order for these derivative works to legally exist, the original copyright owner’s permission must be obtained. If the new creator fails to procure that consent, their derivative work can be considered copyright infringement.
Two such photos posted by a Twitter user conglomerate form the foundation of Morton’s current lawsuit. Morton did file takedown requests with Twitter, and the account was eventually suspended. However, Morton wants damages for the slowness of the takedowns. Twitter’s reactivity ranged from a few weeks to a few months for the posts.
Morton is counting her dollar damages by the amount of “likes” per post. However, Morton’s lawyer maintains that actual damages could amount to even more, since the quantity of users who saw the image without noting their reaction could be even higher.
One law professor opined that the case may hang on proving Twitter’s inducement of users to post unauthorized images. The algorithm’s function might actually make a case for that.
Thinking about editing someone else’s photos and posting them for your own use? Think again — and seek the advice of a copyright lawyer. Better to use your own photos.