The key litigated issue was whether a photojournalist posting photos on Twitter under Twitter's terms of service (TOS) thereby granted the new agency Agence France Presse (AFP) a general license to use this content as a third party beneficiary to the Twitter TOS.

Daniel Morel, a photojournalist, took photographs of the 2010 Haiti earthquake and posted them to Twitter, through a Twitpic account. An unnamed party, Lisandro Suero, reposted the photos on his Twitter account and tweeted that he had exclusive earthquake photos. Within a few hours, an AFP staffer found the photos on Suero's Twitter account and the photos were transmitted to Getty Images, Inc., which licenses photos in its database to users. Morel sent takedown letters and requests, which prompted a preemptive lawsuit by AFP seeking a declaration that AFP had not infringed Morel's copyrights. Morel responded with counterclaims against AFP and Getty, among others, asserting willful copyright infringement and a violation of the Digital Millennium Copyright Act (DMCA).

After certain claims were dismissed, Morel moved for summary judgment on his claim of direct copyright infringement claiming that AFP and Getty infringed his right of reproduction, public display and distribution.

In its January 14, 2013 opinion, the US District Court for the Southern District of New York granted Morel's cross-motion for summary judgment on the issue of copyright infringement finding that there was direct copyright infringement.

The district court rejected the argument that Morel granted AFP a license by posting his photos to Twitter and held that the Twitter TOS did not provide AFP with a license. The district court explained that even if some re-uses of Twitter content are permissible, such as re-tweeting content, this does not extend to a general license for third parties. In other words, a license for one use does not necessitate a license for all uses.

The court also pointed out that construing the Twitter TOS to provide an unrestrained, third-party license to repurpose content from Twitter and commercially license it would be a gross expansion of the Twitter TOS, which was not supported by the TOS's language. The district court explained that by their terms, Twitter's TOS limited any license grant to only Twitter and its partners, which did not include AFP. The district court also stated that AFP ignored terms that were directly contrary to its position, in particular the portions of the TOS stating that users retain their rights to submitted content. The district court explained that these statements would have no meaning if the TOS allowed third parties to copy the content from Twitter and license it to others without the copyright holders' consent.

A secondary issue was whether the DMCA safe harbor protected counterclaim defendant Getty's conduct. The safe harbor, created through Title II of the DMCA, shields service providers from liability under certain circumstances arising from user-based content placed on the service provider's system or network. The district court held that the safe-harbor provisions did not protect Getty because the safe harbor provisions were directed towards protecting entities that facilitate user's online experiences, like a search engine, rather than an entity that merely sells or licenses copyrighted materials online. The district court concluded that there is an issue of fact as to whether Getty is a service provider, and found that a jury could infer that Getty's role extended beyond merely providing a file-hosting service to AFP and that Getty itself acted as a licensor of the photos.

Citing the Second Circuit's decision in Cablevision, the district court also denied the parties' motions for summary judgment as to Getty's defense that it did not engage in sufficient volitional conduct to be held liable for copyright infringement, stating that there was evidence from which a jury could infer that Getty took affirmative acts to distribute the photos and had control over whether the photos were displayed on its website.

This case is one of the first to address the third party commercial use of content posted on social media. The decision makes clear that simply because a party publicly shares content on a social media platform, a court will not override express terms of service to broadly construe third-party rights to this content.

The court's discussion, in considering Getty's liability, of the DMCA safe harbor highlights that a court may be skeptical of reliance on the safe harbor where a service is not a typical online service provider, such as a search engine or file hosting service. More generally, the discussion highlights the limits under any circumstances of reliance on the safe harbor where a party may have taken affirmative actions regarding relevant content.