Quick! What’s the French for déjà vu? Even before getting to court in the case concerning Daniel Morel’s Haiti photographs, wire agency Agence France Press has found itself on the losing side in another case of stolen internet photos.
In September 2009 Chicago photographer Wayne Cable photographed 5040 South Greenwood Avenue for the Matt Garrison Group, a luxury real estate firm. Garrison and Cable agreed that the photos were only to be used for marketing the property, that any further use could only be authorised by Cable, and that the Garrison website feature Cable’s copyright notice and a link to his website.
When the pictures were published what caught AFP’s eye was neighbouring house 5046, or more specifically its owner, one President Barack Obama. Not surprisingly Garrison’s marketing materials mention the Presidential neighbour, and one of Cable’s exterior photos included the Obama Chicago residence. So naturally AFP lifted the image, stripped the ownership information, and distributed Cable’s photo as its own.
When Cable filed suit against AFP on nine counts, including copyright infringement, Digital Millennium Copyright Act violation and deceptive business practices the agency didn’t deny heisting Cable’s image: instead it tried to wriggle out by having the case dismissed on a legal technicality. Falling back on the defence of “that law doesn’t apply to us”, AFP’s lawyers argued that the DMCA, which makes illegal the removal or alteration of copyright management information, only applies to automated digital rights management systems, and not to something as blindingly obvious as a plain English copyright notice beside the image and a link to the photographer’s website.
It’s an interesting defence by AFP, since the vast majority of images on the internet lack any automated digital rights management: ownership is generally identified, if at all, by a copyright notice in the vicinity of the image. So to follow AFP’s argument to its logical conclusion, the vast majority of images on the internet are fair game for AFP – or anyone else – to grab and distribute.
That’s tosh of course, and AFP knows it. And so did the judge, who dismissed AFP’s arguments, thus paving the way for Cable to seek a trial and compensation for the agency infringements. The five-page judgment contains plenty of dense legalese, but is easily summarised: “You are wasting the court’s time, prepare to be sued”.
The judgment is a further embarrassment for AFP, and not only because it allows Cable to proceed against the agency. The forthcoming Morel case will be high profile and played for high stakes: it would be helpful to AFP to go into that hearing with a squeaky-clean reputation. Instead the agency looks likely to appear not only as a repeat offender, but one that has already been smacked down in court for attemping to use a non-existent legal loophole to claim ownership of virtually any image that takes its fancy.