Under copyright law, platforms can limit liability for the actions of their users provided they respond to DMCA takedown notices in a timely fashion and suspend or terminate users who repeatedly infringe copyright.
If a platform fails in either respect, rightsholders may attempt to hold it liable for infringements that it had the ability to stop, but failed to do so.
Celebrity Photo Agency Sues Twitter
On December 30, 2022, celebrity photo agency Backgrid filed a lawsuit against Twitter at the U.S. District Court for the Central District of California.
The complaint alleges that Backgrid sent more than 6,700 DMCA notices to Twitter requesting the removal of its copyrighted images, but Twitter failed to take down a single one. Backgrid further alleges that its images were posted continuously by some Twitter users, but Twitter failed to suspend any accounts under its ‘repeat infringer’ policy.
The complaint notes that Backgrid attempted to resolve its dispute with Twitter directly, but when the company failed to respond, the photo agency launched this action.
Backgrid: No Action in Response to DMCA Notices
The complaint describes Backgrid as “the world’s premier celebrity-related photograph agency.” The company says that its celebrity images are regularly licensed by publications including Vogue, Ella, TMZ, and Harper’s Bazaar. Backgrid says that websites using its copyrighted and registered celebrity images increase their traffic and viewer engagement.
According to the complaint, Twitter receives similar benefits when users upload Backgrid images to the platform, but when those images are unlicensed, Twitter must take action to prevent further infringement. Backgrid alleges that in thousands of cases, Twitter did nothing.
“Despite having received DMCA notices from Backgrid, Twitter has not expeditiously taken down Backgrid’s Celebrity content,” the complaint notes. “For example, Backgrid sent over 6,700 DMCA notices, but Twitter has not expeditiously taken down content in response to the same and cannot seek protection under the DMCA.”
Complaint Details Specific Accounts’ Alleged Infringements
Twitter accounts that allegedly posted Backgrid content on multiple occasions are mentioned directly in the complaint. The first named account in the lawsuit (@BSO) is of immediate interest since it belongs to Robert Littal, former co-host of the TMZ Sports show and founder/editor of news site BlackSportsOnline.com.
The complaint alleges that the account was targeted by 73 DMCA notices in connection with 49 copyrighted Backgrid images, posted between September 2021 and November 2022. (small sample below)
Checks on two dozen links reveal that all remain intact, as does the account.
The second named account (@foochia) is operated by the news site Foochia.com. It describes itself as a platform “concerned with the affairs and concerns of Arab women, from which we look at the world of fashion, beauty, grace and elegance, and we follow celebrity news, art and culture.”
“Backgrid sent Twitter at least 101 DMCA take-down notifications encompassing at least 42 timely registered photographs on the ‘foochia’ account,” the complaint reads.
DMCA notices cover the same September 2021 to November 2022 period, and the related URLs on Twitter seem intact. The tweets contain images of celebrities including Kanye West, Justin Beiber, Rihanna, Kendall Jenner, and Jennifer Lopez, among others.
“Notwithstanding the receipt of the take-down notices described herein, the ‘foochia’ account remains live and active,” the complaint notes.
Repeat Infringer Allegations
Twitter’s copyright policy states that the company responds to copyright complaints submitted under the DMCA and under certain conditions may take action against user accounts.
“If multiple copyright complaints are received about an account, or other evidence suggests a pattern of repeat infringement, Twitter may suspend that account in accordance with our Repeat Infringer Policy. Our Repeat Infringer Policy takes valid retractions and counter-notices into account,” Twitter’s policy reads.
To benefit from limitations on liability under the DMCA (17 U.S. Code § 512), services providers like Twitter must have “adopted and reasonably implemented” a policy that provides for the termination in “appropriate circumstances” of subscribers who are “repeat infringers.”
The terms reasonable, appropriate, and repeat are not clearly defined in law, so Backgrid offers its own guidelines for the court’s consideration.
“Industry standard practices have resulted in the widespread adoption and implementation by legitimate ISPs of a ‘three-strikes’ policy with respect to repeat infringers,” Backgrid says.
“The industry standard requires that to qualify for the DMCA safe harbor protection, ISPs must terminate the accounts of users that have been the subject of three infringement complaints. Defendant, however, regularly fails and refuses to comport with the industry standard.
“Stunningly, all of the accounts remain live and online today while Twitter continues to profit from the blatant, repeated, and ongoing infringements of the copyrighted works of others, including without limitation the timely registered Celebrity Photographs [in suit],” the complaint adds.
“Direct, Contributory, and Vicarious Infringement”
According to the lawsuit, Twitter infringed “at least 1,526” of Backgrid’s celebrity images, with infringement “continuous and on-going.”
Backgrid alleges direct infringement due to Twitter failing to remove images “long after being apprised of their infringing status” and contributory infringement for encouraging users to upload and edit photographs found on the internet, failing to advise users of the consequences, and for removing metadata from the images.
“Defendant is aware of the massive scale of copyright infringement it facilitates and encourages, and of the revenue and profits such infringement generates for it,” the image company adds.
Backgrid seeks a declaration that Twitter infringes its copyrights and an injunction under 17 U.S.C. § 502 to prevent any further acts of infringement.
Based on its allegations that Twitter neither adopted nor reasonably implemented a repeat infringer policy, Backgrid requests a declaration that Twitter is liable for each of the works infringed on its platform.
Describing Twitter’s infringement as willful and egregious, Backgrid believes it’s entitled to maximum statutory damages of $150,000 per image – $228.9 million in total.